This Past Questions & Answers Series originally written and edited by;

 Igweonu Tobenna Calistus

 Olika Daniel Godson
 Balogun Oluwakemi
 Aliu Gabriel
 Unukegwo Supreme

is hereby transferred for the free use and enjoyment by members of the Faculty of Law,
University of Lagos.

January 1, 2017

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ADMINISTRATIVE LAW…………………….3

LEGAL SYSTEM ……………………………111

LEGAL METHODS………………………….172

LAW OF CONTRACT……………………….209

CONSTITUTIONAL LAW…………………..268

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 UNIVERSITY OF LAGOS

FACULTY OF LAW

LL.B DEGREE EXAMINATION

FIRST SEMESTER, 2010/2011 SESSION

PUL 202: ADMINISTRATIVE LAW1

INSTRUCTION: ATTEMPT ANY FOUR QUESTIONS

1. Examine the mechanisms for the enforcement of the Code of Conduct for Public Officers.

2. Discuss any two of the following principles:

(a) Rule of Law

(b) Separation of Powers

(c) Supremacy of the Constitution

3. The Civil Service in Nigeria has performed below expectation in its delivery of service to the
citizenry. The government of Nigeria had, therefore, set up in this regard various reform
panels to look into the trouble bedeviling the Nigerian Civil Service. What in your opinion
are the reasons why the various reforms of the Civil Service have failed? Make appropriate
recommendations.

4. Judicial control is the most effective control of Administrative Powers. Discuss.

5. “The volume of our laws begins with the primary laws passed by the legislature itself, and
goes on to give the subsidiary legislation made by a person or body authorized by legislature
to supplement its enactments. This convenient method of legislation has been in use over the
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year.” Williams v. Majekodunmi (No. 3) (1962) 1 All N.L.R 413

Critically examine this statement in light of the criticisms for and against delegated legislation.

6. (a) Define Administrative Law

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(b) Discuss the similarities and dissimilarities between Administrative Law and Constitutional
Law.

ANSWERS

1. Mechanisms for the Enforcement of the Code of Conduct for Public

Officers

In order to ensure the efficacy of Public Officers in governance as well as transparency

and accountability in the performance of their functions, the Code of Conduct was designed. The
Code of Conduct Bureau and Tribunal Act is an Act to provide for the establishment of the
Code of Conduct Bureau and Tribunal to deal with complaints of corruption by public servants
for breaches of its provisions. Section 1(1) of the Act provides for the establishment of the Code
of Conduct Bureau. Section 1(2) provides that the Bureau shall consist of a Chairman and ten
other members who shall be persons of unimpeachable integrity in the Nigerian Society and who
at the time of their appointment are not less than 50 years. Section 20 of the Act establishes the
tribunal. Section 3 provides that the Chairman and the other members shall be appointed by the
President of Nigeria.

The Code of Conduct Bureau is a legal institutional framework established by the 1999
constitution to help combat corruption in the country. The Economic and Financial Crimes
Commission (EFCC) was also established by the EFCC Act 2004. The difference between the
Code of Conduct and the EFCC is that the code of conduct is mainly for fighting corruption
amongst government officials.

Section 98 of the Criminal Law of Lagos State has to do with bribery among or between public
officials. Bribery is a criminal offence. Public morality will be defined differently in various
societies and the constitution and the Code of Conduct Bureau did not define the term “public
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morality.”

Section 2 of the Code of Conduct Bureau Act, states that the bureau and tribunal was
established to eradicate corruption. It also states that the aims and objectives of the Bureau shall
be to establish and maintain a high standard of morality in the conduct of government business
and to ensure that the actions and behavior of public officers conform to the highest standards of

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public morality and accountability.

Section 3 of the Act, provides that the functions of the Code of Conduct Bureau shall be to;

(a) Receive assets declarations by public officers in accordance with the provisions of the
Act

(b) Examine the assets declarations and ensure that they comply with the requirements of
the Act and of any law for the time being in force

(c) Take and retain custody of such assets declarations, and

(d) Receive complaints about non-compliance with, or breach of the Act and where the
Bureau considers it necessary to do so, refer such complaints to the Code of Conduct
Tribunal established by Section 20 of this Act and doing so in accordance with the
provisions of Sections 20 to 25 of the Act.

Provided that where the person concerned makes a written admission of such breach or of non-
compliance, no reference to the Tribunal shall be necessary.

Section 5 of the Act and the Fifth Schedule of the 1999 Constitution of the Federal
Republic of Nigeria provides for the Code of Conduct for Public Officers. The former provides
that a public officer shall not put himself in a position which will conflict with his personal
interest and his duties.

Part 1, Section 19 of the Fifth Schedule provides that a Public officer is anyone mentioned in
Part II of the Schedule.

Sections 2-13 of Part 1, of the Fifth Schedule provides those instances when a public officer‟s
personal interest is in conflict with his duties.
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Section 23(1) of the Act gives power to the tribunal to punish offenders, where the Tribunal
finds a public officer guilty of contravening any of the provisions of the Act, it shall impose any
of the punishments specifies under Section 23(2) of the Act.

In conclusion, the Code of Conduct has been designed and established to help eradicate
the problem of corruption in the public service and the means of implementation is as discussed

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above.

2. (a) Rule of Law: The concept of rule of law is considered to be the oldest of all constitutional
concepts and is one of the most basic concepts since it has given birth to other constitutional
concepts. The concept is also recognized as a synonym of law and order. The roots for the
concept of rule of law can be found in ancient Greek philosophies and its obsession with
governmental powers, in the theories of natural law. Origins andjustifications for the concept of
rule of law were found in the writings of John Locke on “social contract”. He believed that the
source of political power was derived from the people and not imposed from above.

According to Aristotle, “the rule of law is preferable to that of any individual.” Bracton opined
that; “the king himself ought not to be subject to man, but subject to God and to the law, because
the law makes him king.” In Gouriet v. Union of Post Office Workers & ors, Lord Denning
noted “Be you ever so high, the law is above you”

The last stage in the development of the concept of rule of law came with the writings of A.V.
Dicey who gave the tripartite formula of;

- Absence of arbitrary power;

- Equality before the Law; and

- Enforcement of Fundamental Human Rights.

a. Absence of arbitrary power: This means that no man should be punished or made to suffer for
any law that is not known or established. Also, nobody should be punished for an offence
without notice of the commission of the offence. Where this is not the case, there is an arbitrary
exercise of power. This principle also excludes the existence of prerogative or wide, arbitrary or
discretionary powers. It also means the supremacy or predominance of regular law. This
therefore excludes the exercise of discretionary powers often wielded by administrative agencies.
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This aspect of his theory has been greatly criticized especially because administrative agencies
have become a veritable fourth arm of government which deals with the implementation of
highly technical and complex matters involving immediate interests of citizens.

b. Equality before the Law: This simply means the equality of all persons before the law and the

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equal subjection of all classes to the ordinary laws of the land as administered by the ordinary
law courts. He however allowed for some modifications here because some acts of parliament
gave judicial or quasi-judicial powers to some executive authorities. This principle is not strictly
applied in practice. For instance, Section 308 of the 1999 Constitution confers immunity on
certain persons. There are also inequalities and preferential treatments in certain professions e.g.
the privileges that a Senior Advocate of Nigeria enjoys as against other lawyers. There is also
circumstantial inequality which often occurs where people receive favours from whoever is
giving them because of the special relationship between them. In addition, social and economic
inequalities in society also affect the subjection of persons to the operation of the law.

c. Guarantee of Fundamental Human Rights: The third principle is the enforcement of the
fundamental human rights usually guaranteed by the constitution. Thus, there are judicial
decisions determining the rights of private persons in particular cases brought before the courts.

According to Mowoe, from Dicey’s three postulations, it is obvious that before the rule of
law can exist in a society, the following must be in place;

(a) Supremacy of written regular law made by the lawmakers;

(b) Certainty and regularity of laws;

(c) Absence of arbitrary or wide discretionary powers on the part of government or its
agencies;

(d) Equality before the law;

(e) Administration of the law by the ordinary law courts;

(f) Enforcement of some minimum rights.

The Diceyan formulation of rule of law has been subjected to severe criticisms by scholars.
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Mowoe opines that Dicey‟s work was partly as a criticism of the French ‘droit administrative
under which a special court was established for administrative actions. RFV Heuston is of the
view that it has been said that Dicey erred in saying that the doctrine of “rule of law” excludes
the existence even of wide discretionary authority on the part of government, and also been
criticized as an attempt to turn particular political and economic theories into a constitutional

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doctrine, especially as the granting of wide discretionary powers to ministers through simple
delegation of powers is now a settled feature of legislation and the process of delegation of
powers by the Legislature under most modern constitutional governments.

It is also applicable under Nigerian Constitutional Law. For instance: the Supreme Court‟s
decisions in Ilori v. State and Ibrahim v. State in interpreting Sections 160 and 191 of the 1979
Constitution to confer wide discretionary powers on the Attorney-General of the Federation and
the States in the exercise of the power to enter a nolle prosequi in criminal trials. In Stitch v.
A.G. Federation, it was held that the exercise of discretionary powers of the minister is subject
to judicial review, following the English decision in Padfield v. Ministry of Agriculture,
Fisheries and Food. In Iwuji v. Commissioner for Establishment per Karibi-Whyte JSC, the
Supreme Court expounded on the law of discretionary powers.

HWR Wade is of the view that Dicey‟s views were based on a mistaken conclusion that the
administrative courts of France existed for the purpose of giving officials certain special rights,
privileges or prerogatives as against that of private citizens. This is however not the case since
courts greatly compensate citizens aggrieved about administrative actions. According to Wade,
the rule of law connotes the following in modern times; supremacy of the law, all acts of
government to be conducted within a framework of defined rules and regulations, an independent
judiciary to pronounce on the legality of government actions, equality before the law with
recognized exceptions and no punishment outside the authority of the law.

In Nigeria, under civilian rule, the function of rule of law is performed by a supreme
constitution which ensures fair hearing of trials in all cases and guarantees the preservation of
rights (except where deprivation is allowed under the provisions of the constitution) through the
subjection of all classes and persons including government and its agencies to its provisions.

The idea of equal subjection of governmental authorities and personnel and the citizens
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alike to the law and the implied prohibition of exemptions based on governmental authority or
position held by any public official or arm of government is a cardinal aspect of rule of law
which has been interpreted to mean that no one should be above the law under Nigerian law as
expressed in the case of Military Governor of Lagos State v. Ojukwu. In Kalu v. The State,
Oputa JSC in espousing the principle of equality before the law aptly stated that; “it should be

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the same open and even-handed justice, blind to all social distinctions and disparities in wealth
and status and no respecter of persons.”

The provisions of Section 6(6)(b) of the 1999 Constitution vests power of judicial review on the
judiciary on all actions of the legislators, ministers and administrative agencies. The requirement
of equality before the law has also been extended to mean the absence of discrimination between
individuals in governmental actions and decisions based solely on unfair or arbitrary grounds,
such as race, colour, ethnicity, place of origin, political opinion, creed or sex, religion and this is
expressed as the social objective of Section 17 and made justiciable as a right to freedom from
discrimination in Section 42.

In Aoko v. Fagbemi, the court held that nobody could be punished for an offence that
was not part of any written law as at the time it was committed. In Shugaba Abdulrahman
Darman v. Federal Minister of Internal Affairs, the court held that the deportation of a family
member of the Great Nigeria People‟s Party and a majority leader in the Borno state house of
assembly was arbitrary, oppressive and unconstitutional being contrary to the provisions of
Section 23 and 28 of the 1979 Constitution. In Attorney General of the Federation v. Attorney
General of Bendel State, the Supreme Court held that the procedure adopted by the national
assembly in passing the appropriation bill was unconstitutional, null and void. In other words, it
is contrary to the „rule of law‟ as represented by the constitution. In Attorney General of Abia
State and Others v. Attorney General of the Federation, the Supreme Court held inter alia, that
no law enacted by the national assembly can constitutionally or validly increase or alter the
tenure of office of elected officers of the local government except in relation to the Federal
Capital Territory Abuja. In Nigerian Soft Drinks Company v. Attorney General Lagos, the
Supreme Court held inter alia, that the Ogun State Law which sought to regulate inter-state trade
and commerce was unconstitutional and the VAT Decree 102 usurped the residual powers of the
state under item 9 of the concurrent legislative list, by purporting to deal with such trade was
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inconsistent with the constitution. In Doherty v. Balewa, the plaintiff bank sought a declaration
that the Commission of Tribunal and Inquiry Act under which the commission was appointed
was unconstitutional since it purported to oust the jurisdiction of the courts and was contrary to
the provisions of the constitution. The Federal Supreme Court held that the Act was not within
the legislative competence of the Federal Parliament in so far as it purports to have effect in

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relation to matters and things within the Federal competence anywhere in the Federation. Also,
the general powers given to the prime minister under Section 3(1) were held to be in excess of
the powers of the parliament under the constitution. Also, the provisions excluding inquiry by
any court were unconstitutional as they purported to limit the jurisdiction of the court.

In Gov. Peter Obi v. INEC, Peter Obi was sworn in as Governor of Anambra following the result
of a tribunal which unseated Chris Ngige on 17th March 2006 and he told INEC not to conduct
elections on 14th April, 2007 as the office would not be vacant in accordance with Section
180(2a) for his four year tenure. INEC conducted election despite the suit in court. He lost at
trial and appeal court but Supreme Court was in his favour and Andy Uba was asked to vacate
office. Also, in Ameachi v. INEC, Amaechi won the PDP Gubernatorial elections but his name
was substituted for Omelua while his suit was pending, elections were held and Omelua was
sworn in. the Supreme Court ordered Omelua to leave office and Amaechi should be sworn in.
the Supreme Court ordered Omelua to leave office and Amaechi should be sworn in. Also, in
Edo where INEC declared Oseirhemen as winner, after investigations, Oshiomole was sworn in
and rule of law was upheld. In A.G. Bendel State v. Aideyan, the appellant state government
purportedly acquired the plaintiff respondent‟s building. Not being satisfied, the respondent sued
the state government. On appeal, the Supreme Court held that the respondent was entitled to his
building. Any act of governance which is not covered under an enabling law is a nullity.

Although it is technically not possible for the rule of law to be in existence under a
military government because the prerequisites for such existence cannot be realized under
dictatorial rule since the manner of coming into power negates the principles of the supremacy of
the law provided for under Section 1(2) of the 1999 Constitution, the Supreme Court has held in
a plethora of cases that the rule of law is tenable under a military regime. In Military Governor
of Lagos State v. Ojukwu, the Supreme Court declared the act of the executive (military) as
executive lawlessness and held that the rule of law and due process must be observed even in a
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military regime. In Lakanmi and anor. v. A.G. Western State, the court also espoused the
doctrine of rule of law under military rule.

Also, in Jackson v. Gowon, the court held that if it is proved that a particular section of the
constitution will be violated by the proceedings in the tribunal of inquiry decree, then, of course,
whether there is a provision that no court of law should inquire into such proceedings then one

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would be bound to declare that such a proceeding is invalid and unconstitutional.

In conclusion, the rule of law is the most basic of all public law concepts and is the bond
that binds a democratic society and has even been held to be in existence in a military or
dictatorial regime.

(b) Separation of Powers: The doctrine of separation of powers is fundamentally a doctrine

opposed to the concentration of state sovereign powers in a single person or body of persons,
since that may lead tot they tyranny and threat to democratic governance, and this doctrine has
been expressed in stronger or weaker form in many constitutions. It is seen as one of the devices
used by Anglo-American system of government to protect the rule of law and prevent the
exercise of arbitrary power by the sovereign. The concept stemmed from the writings of Locke
and Montesquieu. The former argued that it is foolhardy to give lawmakers the power to execute
laws made by them because, in the process, they may exempt themselves from the observance of
the law. To prevent arbitrariness, he championed creation of a constitutionally limited
government and three-fold division of government into:

(a) Legislative power for creation of rules;

(b) Executive power by which laws are enforced; and

(c) Federative Powers which concerns making of war/peace and external relations.

He did not advocate separation between legislative and federative powers. To Montesquieu,
“when the legislative and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty.”

Thus, the kernel of separation of powers is the non-fusion of the functions of government in one
person or body of persons i.e. exercise of law-making powers by the legislature, the
implementation or exercise of executive powers by the executive and the interpretation or
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adjudicative powers by the courts or independent judiciary.

However, a complete separation of powers, in the sense of division of the three functions of
government amongst the three arms with no overlapping or interrelationship i.e. complete
compartmentalization of powers, even if theoretically feasible, will not be practically viable as it

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will make governmental powers inoperable and bring the government to a standstill. According
to Oyewo, a corollary to the doctrine of separation of powers is the principle of “checks and
balances” which seeks to secure the control or limitation of power vested in one arm of
government by another arm of government, as exemplified in the exercise of lawmaking powers
of the legislature under modern constitutions whereby it is circumscribed or checked by the
requirement of assent or veto by the executive, or the exercise of legislative or executive powers
that is subject to the judicial review of the courts. The spectrum of the adaptation of the doctrine
of separation of powers has varied between the form of constitutional democracy. Thus in a
parliamentary system, the powers of both the legislature and executive are fused e.g. The British
Constitutional Democracy model. In a Presidential system, there is a clear separation of powers
in the „functions and functionaries‟ between the various arms of government e.g. The United
States of America Constitutional Democracy model.

Various writers, jurists and scholars have commented on the doctrine of separation of powers.
According to Blackstone, “in all tyrannical governments, the supreme magistracy, or the right
both of making and enforcing laws is vested in one and the same man or one and the same body
of men; and whenever these two powers are united together, there can be no public liberty.”
Prof. Ben Nwabueze SAN opines, “Concentration of government powers in the hands of one
individual is the very definition of dictatorship, and absolute power is by its very nature
arbitrary, capricious and despotic.” James Madison, a republican and 4th President of the United
States of America had this to say, “… there can be no public liberty where the legislative and
executive powers are united in the same person or body of magistrates or if the power of judging
be not separated from the legislative and executive powers.”

The adaptation of this concept has been a prominent feature of Nigerian Constitutions since
independence. The 1960 and 1963 Constitutions adopted the British concept of separation of
powers whereby power was shared between the judiciary on one side, and the parliament and the
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executive on the other. However, the 1979, 1989 and 1999 Constitutions adapted the American
style, where there is a clear separation of the powers of the government. Under these
Constitutions, Section 4 vested legislative powers in the National Assembly and state house of
assembly, Section 5 vested executive powers on the President and Governors and Section 6
vested judicial powers in the constitution established by the Constitution. The separation is also

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that of functions and functionaries as enumerated in Chapter V (legislature), Chapter VI
(executive), and Chapter VII (judicature) of the Constitution. Thus, in keeping with the spirit of
the concept, Section 147(4) of the Constitution provides that a member of the legislature
appointed as a minister of the federation must vacate his seat in the legislature.

However, the strict compartmentalization or division of power is not practicable in

modern government, as the constitutional arrangement allows for the practice of corollary
principle of checks and balances by involving the different arms of government in the discharge
of the functions of the other arms of government. Thus, Abiola Ojo observed that;

“… a complete separation of powers is neither practicable nor desirable for effective

government. What the doctrine can be taken to mean is the prevention of tyranny by the
conferment of too much power on anyone, person or body and the check of one power by
another.” Thus, even when a power is primarily vested in one arm of government another arm of
government can be constitutionally involved in the performance of that major function.

Thus, under Sections 58 and 59 of the Constitution, the President can exercise veto powers over
laws made by the legislature, but such can be overruled by two-thirds majority of the National
Assembly. Thus, in National Assembly v. President of the Federal Republic of Nigeria, the
court held that a Presidential veto can only be overturned by the votes of two-thirds majority of
the whole house and not a quorum and there must be a full reconsideration of the vetoed bill
before being passed into law. Also, in Olisa Agbakoba SAN v. The National Assembly and The
A.G. of the Federation, it was held that without the President‟s assent the National Assembly
cannot validly exercise its powers to amend or alter the Constitution under Section 9 of the
Constitution. Section 32 of the Constitution provides that the President can make regulations on
citizenship but it must be laid before the legislature. The Constitution by virtue of Sections 175
and 211 of the Constitutions vests the power of prerogative of mercy or pardon on the President
and State Governors. These powers clearly amount to a check on the powers of the judiciary to
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impose sentence after a due process of adjudication. This is also the case in the appointment of
judges even though with the approval of the legislature. The provisions of Section 147(2) and
192(2) of the Constitution which empowers the legislature to confirm the President‟s or
Governor‟s appointments of the members of the executive council is a clear imposition of
“checks and balances” as a limitation on the application of the principle of separation of powers.

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Thus, in Inakoju v. Adeleke, the Supreme Court adopted a pragmatic approach in its
interpretation of constitutional provision adopting the principle when it noted that the principle
of separation of powers under the constitution is meant to guarantee good governance and
development and to prevent abuse of power. Section 59 grants the National Assembly the power
of budget approval through the passing of appropriation bills. Sections 80-83 grants the National
Assembly power of control over public funds. Section 88 confers quasi-judicial powers of
conducting investigations into exercise of executive powers by the Minister or the Legislature.
Section 84 of the Constitution confers the power to determine the remuneration of members of
the executive and judiciary. The investigative power of the legislature is aimed at exposing
arbitrariness, abuse of power, corruption and bad governance on the part of the executive.
Section 143 confers the power of impeachment on the legislature as a result of „gross
misconduct‟. Constitutional procedure must however be followed. In Morebishe v. Lagos State
House of Assembly, the court stated that the purpose of separation of powers under the
constitution is to prevent exercise of arbitrary powers by any of the three arms of government.
However, Oyewo opined that, “in practice the principle of separation of powers brings about
conflicts, deadlocks and threats of divided and fail government when two arms of government
clash intensely over issues that involve the exercise of their powers.” In trying to gain an upper
hand, the legislature tend to resort to the threat of or use of the power of removal or
impeachment of the chief executive until recently when the supreme court in Inakoju v. Adeleke,
where it gave a strict interpretation to the impeachment provisions to overrule the earlier liberal
interpretation of the court of appeal in Balarabe Musa v. Hamza. This was the most
constitutionally compelling power of the legislature over the executive.

Also, Section 6(6)(b) provides for the separation of judicial function and for the courts to
be able to interprete the constitution and laws and adjudication between the arms of government
on the one hand and between the governmental organs and citizens or group of persons on the
other hand. In Governor of Kaduna State v. Kaduna State House of Assembly, the governor of
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Kaduna State sought a declaration that the amendments of the Local Government Edict were
void because they encroached upon his executive powers because they violated Section 4 and 5
of the 1979 Constitution the court declared some of the amendments void and some
unconstitutional and held inter alia that the doctrine of separation of powers is enshrined in the
1979 Constitution. In A.G. Bendel State v. A.G. Fed and Ors, the court held inter alia that by

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virtue of Section 4(8) of the 1979 Constitution, the courts of law in Nigeria have the duty to see
that there is no infraction of the exercise of legislative power, whether substantive or procedural,
as laid down in the constitution. If there is such infraction, the courts have the power to declare
any legislation passed pursuant to it unconstitutional and invalid. In Honourable Godwin
Jideonwo and Ors. v. Gov. of Bendel State and Ors. the High Court held among other things
that the constitution clearly sets out the powers of the three arms of government, and if the
legislature passes any law which is beyond its competence, and which it has no jurisdiction to
pass, whether or not it was passed by all the members of the house, any member of the house of
the public who is affected can challenge it in court, and nothing prevents the court from setting it
aside and declaring it ultra vires the legislature. Also, as was held in Adesanya v. President of
Nigeria and Tony Momoh v. Senate of the National Assembly, nothing prevents a court of
competent jurisdiction from hearing and determining matters that had been discussed in the
house.

In conclusion, the doctrine of separation of powers seeks to prevent anarchy and

arbitrariness by decentralizing powers, however, since a complete decentralization of power is
not possible, the doctrine of checks and balances has been developed as its corollary in keeping
with the spirit of preventing arbitrariness.

(c) Supremacy of the Constitution: Supremacy of the Constitution otherwise known as

„Constitutional Supremacy‟ simply means that the constitution is superior (both substantively
and procedurally) to any law or any other legally enforceable instrument or expression. So,
where the provisions of the constitution is in conflict with any other law, the provisions of the
constitution will prevail and render such law or legal normative expression or instrument null
and void to the extent of its inconsistency. This concept or doctrine is amongst countries with
written constitutions like; USA, India, Nigeria, etc. The concept of constitutional supremacy is
entrenched in the 1999 Constitution of Nigeria by virtue of Section 1(1) and (3) of the
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Constitution which jointly provide that the constitution is supreme and superior to all other laws
and any law which is inconsistent with the provisions of the constitution shall be declared null
and void and unconstitutional to the extent of its inconsistency.

The doctrine of supremacy of the constitution became applicable under the 1979 and
1999 Constitutions of Nigeria. This is because the 1960 and 1963 Constitutions practiced

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parliamentary supremacy. This doctrine which is now applicable under our constitution was
adapted from the American Constitutional Law which practices supremacy of the constitution as
derived from the supremacy clause Article VI Clause 242 and the decision of the Supreme Court
in Marbury v. Madison. Also, Alexander Hamilton, one of the framers of the American
Constitution explains that there is often an irresistible tendency on the part of the legislature to
want to absorb other arms of government. As a result, modern democracies rather opted for
entrenched constitutions which operate the concept of constitutional supremacy which thereby
limits powers of government.

Section 6(6)(b) of the constitution further entrenches constitutional supremacy by the

power of judicial review of all actions of government and persons. Thus, when any act of
government or its agencies or persons is inconsistent with the provisions of the constitution, it is
declared null and void by the courts. Thus, the Supreme Court has been able to declare void
decrees that are inconsistent with the constitution upon the coming into force of the constitution
due to the supremacy of the constitution. Thus, in A.G. Lagos State v. A.G. Federation, with the
coming into force of the 1999 constitution, the court declared the Urban and Regional
Planning Act (Decree No. 88) of 1992, null and void and inconsistent with the constitutional
arrangement for the exercise of legislative powers under the 1999 constitution.

Also, in Kotoye v. CBN and Others per Nnaemeke-Agu JSC held that the constitution is not
only the supreme law of the land but also in appropriate metaphor, the touch stone and yardstick
of the measurement of the validity of all other laws. In Fawehinmi v. Abacha, the court held that
the constitution is the supreme law of the land is superior to any other law or international treaty.
Udoma JSC stated in the case of Rabiu v. State that; “… the present constitution has been
proclaimed the supreme law of the land…” In Attorney General of Bendel State v. Attorney
General of the Federation and Others, the court declared unconstitutional the procedure by
which the appropriation bill was passed by the National Assembly. Again, the court held in
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Ibidokun v. Adaralode, inter alia that the provisions of Section 41 of the Land Use Act is
contrary to that of Section 272(1) of the 1999 Constitution and that it purports to exclude the
jurisdiction of the high court in relation to land matters in rural areas, hence, it is null and void.
Similarly, in INEC v. Musa, the Supreme Court in pronouncing on the implication of the
supremacy of the constitution on constitutionality of all statutory provisions applied the „doctrine

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of covering the field‟ to declare void such statutory provisions of the Electoral Act and
guidelines made pursuant thereto by the INEC to the extent of their inconsistency with the
provisions of the constitution. The court has also declared and affirmed the supremacy of the
constitution in relation to exercise of legislative and executive powers. An example of a case
where the court did this is Inakoju v. Adeleke.

In Adewole and Ors. v. Jakande and Ors. per Omolulu-Thomas J. held that the circular
proposed by the Lagos State Ministry of Education which proposed the abolition of private
primary schools in a bid to provide equal education opportunities for all children in the state was
unconstitutional, illegal, invalid and null and void.

The doctrine of supremacy of the constitution has also been a veritable tool for the “strict
scrutiny” of all executive and administrative actions that infringe upon the fundamental rights of
citizens guaranteed under Fundamental Rights provisions of Chapter IV of the 1999
Constitution. In Ugwu v. Ararume, the court held that the right of access to court is
constitutionally guaranteed and could not be denied by any other law or rules of a political party.

Also, the courts have upheld the fundamental nature of the constitutionally guaranteed rights and
invalidated proceedings that violate the right to fair hearing. Thus, in the case of Zideeh v.
RSCSC, the court held that the source of the requirement of the respect for the right to fair
hearing is the constitution and the right cannot be easily waived or taken away by statute. The
courts have also upheld the actions that violate the constitutionally guaranteed rights. Thus, in
the case of Adams v. A.G. Federation, the court pronounced the rule of strict scrutiny of powers
which seek to deprive the citizens of their right to personal liberty.

In military or dictatorial regimes, the concept of supremacy of the constitution is always

the first to be abrogated. This is primarily because the way they assume power and their style of
governance is prohibited by the constitution. This is also a contravention of Section 1(2) of the
January 1, 2017

1999 Constitution. Thus, upon coming into power, they promulgate a constitution (suspension
and modification) decree. Thus, Section 1 of Decree No. 1 of 1966 provides that;

“subject to this and any other decrees, provisions of the constitution which are not suspended by
subsection (1) shall have effect subject to modifications suspended in schedule 2 to the decree.”

17
Also, in Lakanmi and Anor. v. A.G. Western State, the federal military government‟s legislative
power was seen to be supreme as the decision was reversed by Decree No. 28 of 1970.

In conclusion, the concept of supremacy of the constitution simply places the provisions
of the constitution over and above the provisions of any other law and is common in countries
with written constitutions but is usually abrogated in military or dictatorial regimes.

3. Civil Service: Suggestions for Sustainable Reforms

Civil Service includes workers who are not political appointees and who work for any branch of
government or establishments owned by the government or establishments owned by
government of the federation. There is a constitutional backing for both the Federal and State
Civil Service. They promote the fundamental rights guaranteed by the constitution. For instance;
health services provision, water, good environment etc. According to Black’s Law Dictionary,
civil service refers to; “the administrative branches of a government or the group of people
employed by these branches.” Ese Malemi defines it as; “Generally, the civil service is the body
of workers excluding political appointees, who work for any branch, or department of
government, or any agency, authority, body, institution, or establishment owned by government,
and are usually paid out of money voted or budget passed by parliament.” The civil service can
also mean the body of public officers responsible for the implementation of the policies and
programmes of government. The civil service is the administrative arm of government and is
responsible for managing the affairs of government, exercising powers and carrying out duties,
functions, business and activities of government. It also implements the policies, objectives and
programmes of government. The employees of government who carry out these functions are
known as civil servants.

The Civil Service is also known as public service. The 1999 Constitution provides for
and establishes the Civil Service at the Federal and State levels by virtue of Sections 169 and
January 1, 2017

206 respectively. The Civil Service is broken into different departments. Each is called a
ministry and is headed by a minister at the Federal level and by a commissioner at the State
level, each of which serves as the political and executive head of the ministry.

The problems of the Civil Service are many and if removed they will enable the Civil
Service to function efficiently and maximally and the reforms of the civil service would be

18
successful. The problems are:

a. They are outdated administrative bodies. These bodies do not improve in the technical aid of
the services provided. The equipment and facilities used in these bodies and parastatals have not
been improved or updated in recent times and thus affects the quality of work and activities
carried out here and also prevents the reforms from being successful.

b. Political Instability in the country as well as frequent military intervention affects policy
making and implementation in the civil service and also hinders the success of the various
reforms undertaken.

c. Political interference by politicians and frequent change of Ministerial Heads also affects the
effectiveness of the civil service and hinders the success of reforms undertaken.

d. Tribalism, Nepotism and Favouritism affects the quality of personnel appointed into the civil
service and the quality of the job done thus disrupting the effectiveness of the reforms carried
out.

e. Poor Pay and Poor Conditions of Service affects the morale of the workers and civil servants
who possess an „I-don‟t-care-attitude‟ towards their jobs and duties in the civil service. This
affects the quality of service of the civil service in the long run.

f. Bribery and Corruption amongst most civil servants affects and hinders the success of the
reforms undertaken as most civil servants seek undue gratification for any work done. Not only
that, kickbacks and corruption are cankerworms that have eaten deep in the service.

g. Red-Tapism (Bureaucaracy) is also a major problem that affects the productivity of the Civil
Service. Too much emphasis is laid on protocol especially on issues that need urgent attention.
This slows done decision making process and implementation of policies.
January 1, 2017

Some recommendations and factors that if taken into consideration would ensure the success of
the various reforms that have been undertaken over the years.

First, proper remuneration of the Civil Servants through increase in their allowances would prove
to be a useful strategy in boosting the morale of workers and would in the long run affect
productivity and ensure the success of future reforms that would be undertaken in the civil

19
service. Secondly, the workers should be appointed on merit. Those to be recruited into the civil
service (through open competition or interview) should be on merit, not on political leverage.
This would improve the quality and effectiveness of the Civil Servants appointed. The
requirements for recruitment and appointment should be made public so that whoever meets
them would be appointed.

In addition to this, members of the Civil Service must abstain from politics. They must also be
neutral and loyal to any given party in government and this can only be achieved through the
entrenchment of “non-partisanship” as a code of conduct. Members of the Civil Service who
wish to participate in partisan politics should resign from the civil service before doing so. This
is to ensure that their loyalty and service is not affected by their political affiliations. The Civil
Servant should be neutral as long as he remains in office.

Again, the Minister should take responsibility for the action of his subordinates in the service.
This would ensure that the Minister ensures that his subordinates are effective since he knows he
would be vicariously liable for their acts. This would in turn ensure increased productivity and
the success of whatever reform that would be taken. Furthermore, the Civil Service Commission
should be a neutral body and it should be free from the control of the executive and other self-
seeking political leaders. This would ensure that the civil service does not become entangled in
the political activities in the country, thus, affecting its efficacy. Also, every Civil Servant must
carry out the decisions and policy laid down by the political boss e.g. the Minister. He must also
resist illegitimate political demands or pressures.

In conclusion, when the above recommendations are taken into consideration and
followed to the latter, the Civil Service would have an immediate facelift and the reforms taken
by the government would be successful.

4. A Critical Appraisal of Judicial Review as the Most Effective Control of Administrative

January 1, 2017

Powers

Administrative acts are subject to the scrutiny of the court in the exercise of the power of judicial
review. This is in order to see whether or not a particular exercise of delegated legislation or
delegated power is ultra vires, inordinate or otherwise. This is sequel to the power conferred on
the judiciary by virtue of Section 6 of the 1999 Constitution. Under Section 46 of the

20
Constitution, any person who alleges that any of the provisions of the Constitution on
Fundamental Human Rights has been, is being or is likely to be contravened in any state in
relation to him may apply to a High Court in that state for redress.

Judicial review is also commonly granted by the court where delegation of power or
delegated legislation is challenged on grounds of breach of the rules of natural justice, lack of
fair hearing or other failure to observe the due process of law such as lack of substantial evidence
for the action that was taken, administrative determination that was made or inaction. A court
may hear an application for judicial review and grant such legal remedies as are appropriate. The
legal remedies include; declaration of rights, order of mandamus, order of prohibition, order of
certiorari, injunction, writ of habeas corpus, award of damages, offer of apology or otherwise set
aside, reduce or suspend such sanction. Thus, in Director of SSS v. Agbakoba, the Supreme
Court in affirming the judgment of the court of appeal made an order for the defendants
respondents state security service operatives to release the applicant‟s passport to him as they
had no power to impound it in the circumstances. The Act was beyond the powers delegated to
them in the enabling statute which established the state security service.

A court may however grant relief subject to the following pre-requisites; the rule of first having
recourse to administrative remedies where available, doctrine of ultra vires, right of action or
appeal, possession of jurisdiction, the doctrine of ripeness, locus standi and so forth. Rogers
Bird defined locus standi as the right to be heard in court or other proceedings. The court in
Thomas v. Olufosoye defined it as the legal capacity to institute proceedings in a court of law.
By the application of this concept, a person whose claim is in respect of a subject matter that
concerns the public at large is lacking in standing to maintain a claim unless he has a special
legal right or alternatively, if he has sufficient or special interest in the performance of the duty
sought to be enforced as was held in Shindemi v. Governor of Lagos State. What constitutes
sufficient or special interest or whether an interest is worthy of protection is however a matter of
January 1, 2017

judicial discretion as was held in Adesanya v. President of Nigeria. This requirement in Nigeria
dates back to 1961 in the case of Gambioba and Ors. v. Inesi and Ors. where it was held that its
absence is fatal to a case.

Iluyomade and Eka belong to the school that believes that locus standi arises out of the need to
shield the governmental authority from frivolous or unnecessary litigation which may distract the

21
government from its arduous task of administration. Anxiety has been expressed over the
application of the concept in certain cases. Iluyomade and Eka opined that the courts in certain
cases have not only fought shy of standing up to the executive in places, it also gives up to the
body without a fight in their avowed tasks of deciding what the law is. The court‟s decision in
Olawoyin v. A.G. Northern Nigeria and Senator Adesanya v. President, Federal Republic of
Nigeria buttresses this view.

However, by virtue of Section 36 of the 1999 Constitution, every person is accorded the right to
be heard by a court or tribunal. Thus, this right is fundamental and is a potential weapon against
abuse of powers in high places.

Also, the doctrines of „ripeness‟ and „judicial interpretation‟ pose challenges when it comes to
judicial review of delegated legislation. The review of an action of an administrative body by
court calls for interpretation of the enabling statute. This review may be sought before or after
the legislation in issue is enforced. Where the former is the case, a litigant is expected to cross
the hurdle of „ripeness‟ among other requirements. „Ripeness‟ simply means that in other that the
case may be „ripe‟ for judicial consideration, it must involve issues which are real, present or
imminent and not those which are abstract, hypothetical and remote. Several attempts to seek
review of delegated legislation have been frustrated by the courts as a result of this doctrine as
seen in the case of Toilet Goods Association v. Fardner and a host of other cases.

The decisions of the courts have been found wanting in the determination of the arduous
statutory task of interpretation. There are a plethora of cases which underscore this point and the
most striking amongst them is Awolowo and Ors. v. Federal Minister of Internal Affairs and
Anor. In this case, the court interpreted the provisions of Section 13 of the Immigration Act
and Section 21 (5) (C) of the 1960 Constitution and refused to grant the plaintiffs the
declaration sought. The former provision empowers the Governor-General absolute discretion to
prohibit the entry into Nigeria of any person, not being a native of Nigeria while the latter
January 1, 2017

provides that every person who is charged with a criminal offence shall be entitled to defend
himself in person or by legal representatives of his own choice.

This decision has been severely criticized on the ground that the constitutional provision and the
law in issue should have been interpreted in favour of whose liberty is at stake. However, the

22
courts seem to be charting a new path as seen in the case of Action Congress (AC) v. INEC
where the court overruled the decision of INEC barring the erstwhile Vice President Atiku
Abubakar from contesting in the April 2007 election.

In conclusion, judicial control of administrative acts seeks to ensure that the

administrative acts of these bodies are kept within the limits of the law and when necessary
declared ultra vires through the act of judicial review.

5. Delegated Legislation and Law Making

The Law-making power in any democratic setting rightly belongs to the legislature,
parliament or law-making authority. In the case of Nigeria, it is the national assembly made up of
senate and House of Representatives at the federal level and houses of assembly at the state
levels respectively pursuant to the provisions of Section 4 of the 1999 Constitution. However, it
is difficult if not impossible for the supreme law-making body or legislature to make all laws in a
state, thus, it delegates power to make laws to any person or body of persons since it is not
restricted in any way and as long as it does not delegate improperly and does not go ultra vires its
powers as was held in Doherty v. Balewa. The process of doing this is known as delegated
legislation or subsidiary legislation. Attempts have been made by various jurists and writers to
define this concept.

According to Iluyuomade and Eka, subsidiary or delegated legislation, simply put, is law made
by a delegated authority. To Malemi, it is the law made by an administrative authority, public
authority or agency to whom the constitution or an enabling statute has given power to make
law. Osborn’s Concise Law Dictionary defined it as the Legislation by some persons or body
of persons under statutory authority given to that person or body of persons by statute. Idigbe
JSC in Barclays Bank of Nigeria v. Ashiru defined delegated legislation as a legislation made
by a person or body other than sovereign parliament or the government of the state or Federation
January 1, 2017

by virtue of powers conferred either by statute or by legislation which is itself made under
statutory power.

The Law which empowers the administrative authority or agency to make laws is the
enabling act or law. The delegated legislation as well as the enabling act or law has the same
force of law as well as life span as was held in Shitta-Bey v. Federal Public Service

23
Commission. This is so unless the delegated legislation comes in conflict with the enabling
statute or a higher law in the hierarchy of norms. When an administrative authority, public body
or agency does what it has no power to do, such an act will be held to be ultra vires and null and
void as was held in Ifezue v. Mbadugha.

Some reasons have been adduced in favour of the practice of delegated legislation and they are
as follows: firstly, it reduces the parliamentary workload. Parliament does not have all the time
and capacity required to deal with the volume of legislations required by a modern government
or state. By means of delegated legislation, parliament spreads out and shares the function of
law-making with extra-parliamentary bodies. In this way, parliament lessens its workload and
thereby facilitates, quickens and enhances the law-making process. Delegation of power is
therefore inevitable to ensure efficient and effective law making and governance. Secondly, it
enables experts to legislate on technical matters. Parliament is often required to legislate on
highly technical and specialized matters on which many of its members may lack the requisite
knowledge that may be required to legislate in detail and with particularity. Thus, in agreement
with this view, the British Committee on Ministers’ Powers in 1932 said: “The truth is that if
parliament were not willing to delegate law making powers, parliament would be unable to pass
the kind and quality of legislation which modern public opinion requires.” It is therefore
expedient to delegate the regulation of such a matter to the administrative body or agency that
has the required expertise, whilst parliament retains the usual legislative control over such
subsidiary legislations which are made pursuant to acts of parliament.

Thirdly, it saves the time of parliament. By means of a delegated legislation, parliament

delegates powers to certain specialized bodies, and public officers to make minor laws, or
detailed technical or expert regulations required to properly administer the parent or primary
laws made by parliament. This saves time and energy parliament would have expended on
subsidiary legislations. Thus, the practice of delegated legislation enables parliament to
January 1, 2017

concentrate on the making of broad laws in the form of primary or parent statutes. Furthermore,
it saves cost for parliament. The practice of delegated legislation saves the financial cost, human
and material resources and formalities parliament would have expended on the time consuming,
tedious and boring process required to implement primary laws made by parliament.

In addition, it allows for flexibility in administration. Delegated Legislation and delegation of

24
power to subordinates reduces the burden on the superiors and allows for flexibility, adaptability
and quick response which is required to deal with administrative problems of ruling human
beings who are not mechanical and robotic creatures. An administrative authority or agency
which deals directly with the people is in a better position to make rules and regulations tailored
to meet contingencies and unforeseen circumstances that may arise from time to time, from day
to day or even on the spot. Again, it enables quick response to a state of emergency: The
delegation of power and delegated legislation are necessary in times of emergency as parliament
may not be able to sit and deliberate with the slow or cumbersome parliamentary procedures of
debates to be responsive to situations at hand as they unfold. Urgent decisions are needed in such
urgent situations and they are better made by an administrative person or authority. It is therefore
necessary and in the interest of justice to equip the executive or administrative authorities with
the necessary delegated powers by requisite provisions in the constitution and an Emergency
Powers Act under which the administration may take measured and temporary steps as may be
necessary. Delegation of powers and delegated legislation enables government respond to
emergencies, implement emergency measures, or prosecute war, as the case may be. In
Adegbenro v. A.G. Federation and Ors., the Supreme Court held that a restriction order made by
the administrator of western region of Nigeria was invalid.

The practice of delegated legislation also comes with its shortcomings and defects and
they include but are not limited to:

a) It is contrary to the doctrine of separation of powers: It is believed and argued by some that
delegated legislation is an exception to the doctrine of separation of powers and that it is
unacceptable that persons other than parliament should make law. It is mot proper that people
who are not elected should be allowed to make laws. It is desirable that the laws be made by
parliament i.e. the elected representatives of the people who can be called to account or
sanctioned by defeat at an election for enacting an unfavorable law. Delegated legislation is
January 1, 2017

contrary to the doctrine of separation of powers and it is a usurpation of the powers of

parliament.

b) It reduces the supremacy of parliament: Delegated legislation is a usurpation of the law-

making powers of parliament and it amounts to a reduction of the supremacy of parliament to
make laws as was held in A.G. Bendel State v. A.G. Federation and 22 Ors.

25
c) It is undemocratic and prone to abuse: It is undemocratic for persons who are not elected as
parliamentarians and therefore lacking legislative mandate to make laws. Administrative law
makers do not have parliamentary experience and are likely to abuse delegated legislation as was
held in Akingbade v. LTC.

d) It is a violation of the Rule of Law: The making of delegated legislation by administrative

authorities without the observance of the usual law-making procedures is a fundamental defect,
and a violation of the rule of law as was held in Liversidge v. Anderson.

e) It encourages arbitrariness and dictatorship: The possession of the power to make the law
more often than not makes the executive or administrative authority too powerful, bold, over
confident, insolent, arrogant, and more likely to be arbitrary and dictatorial in his disposition and
action as was held in Williams v. Majekodunmi.

f) There is a total lack of or insufficient consultation: Commonly, there is total lack of or

insufficient consultation of stakeholders before delegated legislations are made. Furthermore,
there is no general provision of law for the consultation of concerned interests before the relevant
subordinate authority to whom power has been delegated should go ahead to make the delegated
legislation. The court confirmed this principle in AHFIT Board v. Aylesbury Mushroom Ltd.

In conclusion, delegated legislation refers to rules made by administrative authorities who

have been conferred with law-making powers and this practice has its advantages as well as its
disadvantages as discussed above.

6(a) Definition of Administrative Law

The Administration has become an indispensable feature of modern day governance. It is

necessary for the organization, management, and achievement of the goals and objectives of any
unit of people, business, department or body. Thus, it has become necessary for a body of law to
January 1, 2017

be developed to establish, and curtail the powers of the administration. Administrative Law,
however, has no generally accepted definition. Some legal writers and jurists have attempted to
define the concept. The definitions are based on the perspectives of the different writers and
jurists who put them forward. However, here are some of the definitions of the leading writers in
the field.

26
According to Sir Ivor Jennings, Administrative Law is the law relating to the administration. It
determines the organization, power and duties of administrative authorities. Prof. E.C.S. Wade
and Prof A.W. Bradley said Administrative Law is a branch of public law which is concerned
with the composition, powers, duties, rights and liabilities of the various organs of government
which are engaged in administration or more concisely the law relating to administration. David
Stott and Alexander Felix defined Administrative Law as the Law which regulates the exercise
of power conferred under the Law upon governmental bodies. Prof. H.W.R. Wade, opined that;

“Administrative Law… is the Law relating to the control of governmental powers. This… is the
heart of the subject. All… powers are… subject to legal limitations: there is no such thing as
absolute or unfettered administrative power. It is always possible for any power to be abused…
and the court will invalidate it… if it infringes the limits which the parliament… has ordained.
The primary purpose of administrative Law, therefore, is to keep the powers of government
within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of
authority must be prevented from running amok. As well as power there is duty. It is also the
concern of administrative Law to see that public authorities can be compelled to perform their
duties if they make default… Administrative Law may be said to the body of general principles
which govern the exercise of powers and duties by public authorities.

In the words of Kenneth C. Davies, Administrative Law is the Law concerning the powers and
procedures of administrative agencies. Garner, defined Administrative Law as those rules which
are recognized by the court as Law and which relates to and regulate the administration of
government. David Foulkes, defined Administrative Law thus: “Administrative Law is the Law
relating to public administration… the legal position of public authorities, their powers and
duties and the procedure to be followed in exercising them, their legal relationship with one
another, with the public and their employees.” Eso J.S.C. in Stitch v. Attorney General of the
Federation, defined Administrative Law as the Law that relates to the discharge of functions of a
January 1, 2017

public nature in government and administration. Prof. P.A. Oluyede, defined Administrative
Law as that branch of our law which vests power in administrative agencies, imposes certain
requirements on the agencies in the exercise of the powers and provides remedies against
unlawful administrative acts. Prof B.O. Iluyuomade and Hon. Justice B.U. Eka, defined
Administrative Law as that body of rules which aim at reducing the areas of conflict between the

27
administrative agencies of the state and the individuals. Prof. Oyelowo Oyewo defined
Administrative Law as the body of law, rules, and regulations, and judicial decisions that deal
with the execution and implementation of laws, the establishment of administrative bodies, their
personnel and the relationship between these bodies and the citizens.

The broad issues with which administrative Law is concerned with includes; the organization,
functions, and powers of administrative authorities, public administration and the civil service in
the various tiers of government, public bodies, institutions and agencies, delegation of powers
and delegated legislation.

In conclusion, administrative law is the law that regulates administration, the

organization, functions, powers, procedures and conduct of government, public authorities and
officers and provides remedies for administrative wrongs.

6(b). Similarities and Dissimilarities between Administrative Law and Constitutional Law.

Administrative Law and Constitutional Law are greatly related and the bulk of the issues,
functions, powers, rights, duties and subject matter they deal with are basically the same. The
dividing line between the both of them is very thin. The two subjects can rightly be referred to as
“twin courses”. Thus there is the problem of differentiating Administrative Law from
Constitutional Law. As a result, it is sometimes argued that Administrative Law is a branch of
Constitutional Law. The better view is that though they are interwoven in terms of principles,
rules and remedies and therefore interdependent, however, each is a separate body of law in its
own right making use of common grounds.

Constitutional Law regulates constitutional authority and institutions and provides remedies for
breach of their duties whilst Administrative Law governs the exercise of Administrative powers
and prescribes remedies for breach of the law.
January 1, 2017

Constitutional Law is the supreme and highest law of the country. It is the grundnorm. Any law
that violates the constitution of the country is void to the extent of its inconsistency. Section 1(1)
and (3). It deals mainly with the organs of a state. It touches all the branches law and gives
guidelines on the powers of a state, the relationship between organs of government, between
state and state and between government and the citizens. Thus, if there is a dispute between

28
Administrative Law and Constitutional Law, Constitutional Law will prevail as seen in the case
of Fawehinmi v. Abacha. While, Administrative Law is subordinate to Constitutional Law, is a
species of Constitutional Law and constitutes just a part of Constitutional Law.

Constitutional Law states the structure of the Law while Administrative Law explains the
structures. Administrative Law deals with public authorities and the public sector while
constitutional law deals with the public and private sector. Constitutional Law is concerned with
the organization and functions of government in situ while Administrative Law is concerned
with the organization and functions of government in motion.

While Constitutional Law concerns itself with the totality of governmental powers exercisable in
a sovereign state, Administrative Law concerns itself with the operation of the government and
the executive. Administrative Law remedies were developed by the courts as prerogative
remedies of certiorari, prohibition and mandamus. Constitutional Law provides remedies by way
of Chapter IV and fundamental rights enforcement procedure. According to the court in the case
of Egbuonu v. Borno State Broadcasting Television, for a person to seek remedy, he must bring
an action based on Fundamental Human Rights.

There are intersections between Administrative Law and Constitutional Law because
Administrative Law was developed out of constitutional law, more so, the sources of both are the
same and both are concerned with the functions of government. They have similar principles,
rules and maxims, statutes, case law (judicial precedent) and remedies. They both have to do
with the application of constitutional law and powers of the administration thereof and the
implementation of both Administrative and Constitutional Law involves the use of same
governmental and administrative structures.

Administrative Law has borrowed several fundamental principles that relates to constitutional
law has; rule of law, separation of powers, supremacy of the constitution, fundamental human
January 1, 2017

rights etc. Administrative Law in the characterization of its powers exercise powers that mimic
the powers and functions of the other arms of government with the consent of those arms of
government and their supervision e.g. The Parliament or the Legislature delegates its powers of
law-making to the Administration and the product of the delegation has the same force of law as
the laws made by the parliament through the enabling law. In essence, if the parliament enacts an

29
Act that confers powers on the Administration to make laws, any rule made by the administration
is delegatory and it‟s called subsidiary or subordinate legislation. Another thing administrative
law and constitutional law have in common is the development of the rights which have been
incorporated through International Law (African Charter Act), municipal law (Chapter IV of
the 1999 Constitution) and Administrative Law.

In conclusion, when Administrative Law and Constitutional Law are carefully viewed in
the light of the constituent parts which make up each one of them, one would perhaps easily
come to the conclusion that though both laws are related, however, they are separate and distinct
systems of laws in their own right.

January 1, 2017

30
 FIRST SEMESTER, 2011/2012 SESSION

PUL 202: ADMINISTRATIVE LAW1

1. Kola, Uche, and Zainab are students of different Faculties of Law in Nigerian Universities,
who are attending a conference at the Faculty of Law, University of Lagos. During a session of
the Conference, the delegates were discussing the topic, “nature and classification of
Administrative Power”. The first speaker, Uche, was of the view that, administrative power was
all about executive functions. The second speaker, Zainab, while disagreeing with Uche, stated
that administrative power is all about the discretionary powers of the administration in the
discharge of their functions. Kola, the third speaker, felt that administrative power goes beyond
executive or discretionary powers as its classification has significant impact in administrative
law.

In the light of the above discussions examine the topic with the aid of decided cases.

2. The Board of PHCN intends to phase out old meters and install pre-paid meters are accepted
by consumers and a smooth transition, the Board intends to reach out to the consumers before
reaching a final decision. The Board is confused on the procedure to adopt. Advise the Board on
the proper step to take.

3. Various reasons have been adduced for the need for delegated legislation and the necessity for
its control. Discuss.

4. The Code of Conduct is designed to ensure transparency and accountability in governance. It

has however not lived up to expectations. Discuss the implementation, problem and prospects of
the code of conduct in Nigeria.

5. Examine the scope, powers, functions and limitations of the economic and financial crimes
commission in Nigeria.
January 1, 2017

6. Write short notes on the following:

(a) Rule of Law

(b) Supremacy of the Constitution

31
 (c) Separation of Power

ANSWERS

1. Nature and Classification of Administrative Power

Administrative Powers are the powers exercised by the executive arm of government in carrying
out its functions of overseeing and directing the day to day implementation of the laws governing
a body or unit of people. These powers function to direct, execute, rule and manage the
objectives of any unit of people. Administrative Powers are policy-making and decision taking in
nature.

Administrative Powers were initially classified based on their functions into powers that
performed;

(i) Economic Functions

(ii) Social-Welfare functions

(iii) Institutional Functions

(iv) Pure-Governmental Functions

However, the British Committee on Ministers’ Powers made a bold but not infallible attempt
to classify powers based on their concept in 1932. Thus, it classified administrative powers into;

(i) Legislative Powers

(ii) Executive Powers

(iii) Judicial Powers

(iv) Quasi-Judicial Powers

January 1, 2017

(v) Administrative Decision

i. Legislative Powers: This is also known as the „Rule-Making Powers‟ of the administration. It
refers to the power of the administration to formulate general rules of conduct without reference
to particular cases and usually operating in the future. These Laws usually take the form of Bye-

32
Laws, Directives, Guidelines and Regulations. They have the same force of law as laws passed
by the Legislature or Parliament.

ii. Executive Powers: This refers to the performance of particular acts by the administration,
issuing of particular orders and making decisions that apply general rules to specific cases. This
may take the form of executive, ministerial or administrative powers and such powers are
derivable from the constitution, legislative enactments or the rules of the administrative body
itself.

iii. Judicial Powers: This presupposes an existing dispute between two parties and involves the
application of Laws, rules and principles of law to dispute between parties. It involves the
presentation of the case (not necessarily orally) by the parties, ascertainment of any disputed
facts by evidence adduced by the parties often with the assistance of argument on that evidence,
submission of arguments on any disputed question of law and a decision which disposes of the
whole matter by a finding upon disputed facts and an application of the Law of the land to the
facts so found, including, where required, a ruling upon any disputed question of law.

iv. Quasi-Judicial Power: This kind of power is similar to the judicial power but unlike the latter,
it does not include the submission of arguments on any disputed question of law and the passing
of judgments based on such facts and points of law by the decision-making bodies. Judgment in
this case depends entirely on the Minister‟s free choice. Administrative bodies do not venture
into the arena of civil rights and obligations of citizens in the exercise of these powers. Domestic
Administrative bodies exercise this type of power e.g. the senate body of a university.

v. Administrative Decisions: It can also be referred to as administrative action and it is one in

which the authority in question is not required to employ any of the processes familiar in courts
e.g. hearing of arguments, evidence etc. and is one in which the ground in which the authority in
question acts according to his discretion. Such discretionary powers are either pure (without
January 1, 2017

qualification) or fettered with a duty i.e. the exercise of such powers depend on the performance
of certain duties.

The above discussed classes of administrative powers carry with it some legal
implications. Each kind of administrative power confers rights and obligations on the
administrative authority and on the aggrieved party. As a general rule, the following rights and

33
duties attach:

a) Right to Fair Hearing and Natural Justice

b) Duty to Give Notice

c) Grant of Prerogative Remedies

d) Delegation of Power and the rule against Sub-Delegation

e) Ultra Vires for Unreasonableness

f) Privileged Evidence.

a. Right to Fair Hearing and Natural Justice: Where an administrative power is judicial or quasi-
judicial, the administrative authority is bound to observe the right to fair hearing and rules of
natural justice as was held in the case of Aiyetan v. NIFOR. The rules of natural justice are
expressed in the maxims; audi alterem partem – hear the other side and nemo judex in causa
sua which means that a person cannot be a judge in his own cause. Also, in the case of Owolabi
v. Perm. Sec. Min. of Education, the court held that the right to fair hearing had been breached
because the respondent did not give the applicants ample opportunity to correct the allegation
that the complainant may have had against them and also because he did not act according to the
principles of natural justice. However, if an administrative power is categorized as legislative,
executive or administrative, the rules of natural justice do not apply as a general rule.

b. Duty to Give Notice: Where an administrative power is legislative or administrative, there is

no requirement to give notice as a general rule, except, a statute provides that notice be given to
persons likely to be affected or that they be consulted as was held in Bates v. Lord Hailsham.
However, where a power is judicial or quasi-judicial then notice must be given to the person to
be affected, otherwise the decision or action thereon, may be set aside for failure to observe the
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rules of natural justice.

c. Grant of Prerogative Remedies: A judicial or quasi-judicial administrative power or act can be

quashed or stopped by a prerogative remedy such as an order of mandamus, prohibition,
certiorari etc. However, where an administrative authority acts in a legislative or executive
capacity, a prerogative order of court such as an order of mandamus and so forth may not as a

34
general rule lie against it to compel the performance of a public duty as was held in Banjo and
Ors. v. Abeokuta Urban District Council. In Arzika v. Governor, Northern Region, the
applicant sought for the application of remedies of prohibition and certiorari, the courts held that
the action of the Governor was not a judicial one and therefore the remedies sought were not
available to the applicant.

d. Delegation of Power/The Rule against Sub-Delegation: The general rule is delegatus non
potest delegare which literally translates to; “a delegate has no power to delegate unless he is
otherwise authorized.” However, an executive or ministerial power or function may be
delegated. On the other hand, a legislative, judicial or quasi-judicial power cannot be sub-
delegated as was held in A.G. Bendel State v. A.G. Federation & 22 Ors.

e. Ultra Vires for Unreasonableness: Where a power is legislative in nature, an exercise of it may
not be set aside on the ground of being unreasonable, arbitrary, draconian or ultra vires except
for instance it breaches the constitution or other statute. However, where a power is
administrative or executive, it will be set aside as ultra vires on the ground of unreasonableness,
arbitrariness, mala fide etc. as was held in Altry v. Farrel.

f. Privileged Notice: Unless there is an express statutory provision to the contrary, evidence
given before an administrative proceeding is not covered by the common law rule of absolute
privilege which is available in the regular court proceedings, subject of course to the law of
perjury as was held in Collins v. Henry Whiteway and Co.

In conclusion, the above discussed classes of administrative powers have been so

classified for convenience and have thus been subject to criticisms by jurists, lawyers and legal
writers alike. Also, every class has its legal significance as it confers rights and obligations on
the administrative authority and citizens or aggrieved party.

2. ADMINISTRATIVE RULE MAKING

January 1, 2017

Administrative rule-making is one of the functions performed by administrative agencies.

Administrators make decisions and regulations now and then to govern conduct. Administrative
decision and rule-making procedures are administrative decision and law making procedures.
They are the processes or procedures by which government or administrative authorities make

35
decisions and rules to regulate a given thing, situation or persons. It is otherwise known as
administrative law making, administrative legislation or administrative decision making.

Iluyomade and Eka define it as the assistance of regulations or the making of determinations
which are addressed to indicated but unnamed and unspecified persons or situations – to
distinguish this function from the issuance of orders or findings or the taking of action applying
to named or specified persons or situations – and to consider separately the procedural problems
which surround rule-making when it is carried on by administrative agencies. Malemi defines it
as the making of rules, regulations, determinations, policies, or decisions to regulate a given
thing or situation. Rule-making is the formulation, amendment, repeal of laws, policies, or
decisions by an administrative authority for the purpose of carrying out its objectives.

Consultative Procedure involves consultation with interested or affected parties, that is, the
stakeholders or persons with special knowledge on the subject or issue at hand, before rules or
laws made or before a policy statement, decision or action is taken. Here the administrative
authority endeavours to consult affected parties and also obtains the necessary expert advice. It
may send the proposed rules or regulations or proposed line of action to the interested parties for
suggestions, objections or comments. Thereafter, it may engage in discussions or correspondence
with the stakeholders in resolution of the differences as may be necessary. Consultative
Procedure is a participative procedure or model. It may even involve referendum by voters to
determine whether a proposed government decision or policy be adopted or rejected. Sometimes,
an advisory committee of the administrative authority may then review the proposed decision,
regulations or recommended course of action before it is finally adopted. In modern times, the
consultative procedure of decision and rule-making has been standardized to a great extent with
the establishment of public corporations and agencies. This is so because many of the statutes
creating such bodies provide for statutory governing or advisory bodies, councils, committee or
body with members drawn from diverse backgrounds, professions, fields or sectors of the
January 1, 2017

economy, ministries or departments of government which meet from time to time to make policy
decisions and formulate general rules or regulations for the running of such authorities and the
execution of the functions and duties of such bodies. An example of a participative decision
making is the jury system, where a judge conducts the trial, but the peers of the accused person
make the decision of guilt or innocence, sentence, fine and so forth. Examples of Statutory

36
bodies, or agencies which have statutory boards or councils which members consult amongst
themselves and advice on important proposed decision, rules or action before they are adopted,
published or implemented include all the statutory bodies, corporations and agencies of
government, whether or not they are owned by government or they are independent bodies, such
as, the Standard Organization of Nigeria, National Agency for Food and Drug Administration
and Control, the regulatory bodies of chartered professions such as the Nigerian Bar Association,
the Institute of Chartered Accountants of Nigeria etc. Sir William Graham-Harrison in his
evidence before the British Committee on Minister Power explained the importance and
necessity of consultation in decision and rule making thus: “No minister in his senses… would
ever think of making regulations without, where applicable, giving the persons who will be
affected thereby or their representatives an opportunity of saying what they think about the
proposal.”

Where an enabling statute imposes a duty to consult, failure to comply with the requirement may
render the decision, rules and regulations or what was done invalid on ground of procedure. This
is otherwise known as procedural ultra vires. Thus, in Agricultural, Horticultural and Forestry
Industry Training Board v. Aylesbury Mushroom Ltd, after the order establishing the appellants
came into being, it emerged that the respondents were not consulted or represented on the
National Farmers Union and that they had not received a copy of the draft schedule sent to it.
The respondents contended that they were not bound by the order constituting the training board
on the ground that before making it, the Minister was under a duty to consult the association,
since it was an organization “appearing to him” to be within one of the categories of
organizations which under the Act he was duty bound to consult. On appeal, the court held that
the order constituting it did not bind the association since the minister was under a duty to
consult every organization which appears to him to be an organization which fell within the
provisions of the law and not merely one or some of such organizations. In Popoola v. Adeyemo
the parties were involved in a chieftaincy dispute in which consultation was necessary to resolve.
January 1, 2017

The plaintiff respondent sued the defendants appellants to restrain them on the ground that they
were not members of any ruling house and therefore should not be consulting nor vie for
appointment to the vacant obaship. On appeal, the Supreme Court held that Section 9 of the
Chiefs Law, Oyo State only states the customary law on the issue. Therefore, the section cannot
be used to accommodate the inclusion of a person or house not eligible in a Chieftaincy

37
Declaration.

Two of the most important advantages of the Consultative Procedure are; it allows for cross-
ventilation of ideas and it also allows administrative agencies to acquire useful and information
from the stakeholders.

In conclusion, since the Board of PHCN intends to reach out to the consumers before
reaching a final decision, the Consultative Procedure by virtue of its features and advantages, is
the best and proper step to take under the circumstance raised in the question.

3. CONTROL OF DELEGATED LEGISLATION

The Law-making power in any democratic setting rightly belongs to the legislature, parliament
or law-making authority. In the case of Nigeria, it is the national assembly made up of senate and
House of Representatives at the federal level and houses of assembly at the state levels
respectively pursuant to the provisions of Section 4 of the 1999 Constitution. However, it is
difficult if not impossible for the supreme law-making body or legislature to make all laws in a
state, thus, it delegates power to make laws to any person or body of persons since it is not
restricted in any way and as long as it does not delegate improperly and does not go ultra vires its
powers as was held in Doherty v. Balewa. The process of doing this is known as delegated
legislation or subsidiary legislation. Attempts have been made by various jurists and writers to
define this concept.

According to Iluyuomade and Eka, subsidiary or delegated legislation, simply put, is law made
by a delegated authority. To Malemi, it is the law made by an administrative authority, public
authority or agency to whom the constitution or an enabling statute has given power to make
law. Osborn’s Concise Law Dictionary defined it as the Legislation by some persons or body
of persons under statutory authority given to that person or body of persons by statute. Idigbe
JSC in Barclays Bank of Nigeria v. Ashiru defined delegated legislation as a legislation made
January 1, 2017

by a person or body other than sovereign parliament or the government of the state or Federation
by virtue of powers conferred either by statute or by legislation which is itself made under
statutory power.

The Law which empowers the administrative authority or agency to make laws is the

38
enabling act or law. The delegated legislation as well as the enabling act or law has the same
force of law as well as life span as was held in Shitta-Bey v. Federal Public Service
Commission. This is so unless the delegated legislation comes in conflict with the enabling
statute or a higher law in the hierarchy of norms. When an administrative authority, public body
or agency does what it has no power to do, such an act will be held to be ultra vires and null and
void as was held in Ifezue v. Mbadugha.

Some reasons have been adduced in favour of the practice of delegated legislation and they are
as follows: firstly, it reduces the parliamentary workload. Parliament does not have all the time
and capacity required to deal with the volume of legislations required by a modern government
or state. By means of delegated legislation, parliament spreads out and shares the function of
law-making with extra-parliamentary bodies. In this way, parliament lessens its workload and
thereby facilitates, quickens and enhances the law-making process. Delegation of power is
therefore inevitable to ensure efficient and effective law making and governance. Secondly, it
enables experts to legislate on technical matters. Parliament is often required to legislate on
highly technical and specialized matters on which many of its members may lack the requisite
knowledge that may be required to legislate in detail and with particularity. Thus, in agreement
with this view, the British Committee on Ministers’ Powers in 1932 said: “The truth is that if
parliament were not willing to delegate law making powers, parliament would be unable to pass
the kind and quality of legislation which modern public opinion requires.” It is therefore
expedient to delegate the regulation of such a matter to the administrative body or agency that
has the required expertise, whilst parliament retains the usual legislative control over such
subsidiary legislations which are made pursuant to acts of parliament.

Thirdly, it saves the time of parliament. By means of a delegated legislation, parliament

delegates powers to certain specialized bodies, and public officers to make minor laws, or
detailed technical or expert regulations required to properly administer the parent or primary
January 1, 2017

laws made by parliament. This saves time and energy parliament would have expended on
subsidiary legislations. Thus, the practice of delegated legislation enables parliament to
concentrate on the making of broad laws in the form of primary or parent statutes. Furthermore,
it saves cost for parliament. The practice of delegated legislation saves the financial cost, human
and material resources and formalities parliament would have expended on the time consuming,

39
tedious and boring process required to implement primary laws made by parliament.

In addition, it allows for flexibility in administration. Delegated Legislation and delegation of

power to subordinates reduces the burden on the superiors and allows for flexibility, adaptability
and quick response which is required to deal with administrative problems of ruling human
beings who are not mechanical and robotic creatures. An administrative authority or agency
which deals directly with the people is in a better position to make rules and regulations tailored
to meet contingencies and unforeseen circumstances that may arise from time to time, from day
to day or even on the spot. Again, it enables quick response to a state of emergency: The
delegation of power and delegated legislation are necessary in times of emergency as parliament
may not be able to sit and deliberate with the slow or cumbersome parliamentary procedures of
debates to be responsive to situations at hand as they unfold. Urgent decisions are needed in such
urgent situations and they are better made by an administrative person or authority. It is therefore
necessary and in the interest of justice to equip the executive or administrative authorities with
the necessary delegated powers by requisite provisions in the constitution and an Emergency
Powers Act under which the administration may take measured and temporary steps as may be
necessary. Delegation of powers and delegated legislation enables government respond to
emergencies, implement emergency measures, or prosecute war, as the case may be. In
Adegbenro v. A.G. Federation and Ors., the Supreme Court held that a restriction order made by
the administrator of western region of Nigeria was invalid.

The practice of delegated legislation also comes with its shortcomings and defects and
they include but are not limited to:

a) It is contrary to the doctrine of separation of powers: It is believed and argued by some that
delegated legislation is an exception to the doctrine of separation of powers and that it is
unacceptable that persons other than parliament should make law. It is mot proper that people
who are not elected should be allowed to make laws. It is desirable that the laws be made by
January 1, 2017

parliament i.e. the elected representatives of the people who can be called to account or
sanctioned by defeat at an election for enacting an unfavorable law. Delegated legislation is
contrary to the doctrine of separation of powers and it is a usurpation of the powers of
parliament.

40
b) It reduces the supremacy of parliament: Delegated legislation is a usurpation of the law-
making powers of parliament and it amounts to a reduction of the supremacy of parliament to
make laws as was held in A.G. Bendel State v. A.G. Federation and 22 Ors.

c) It is undemocratic and prone to abuse: It is undemocratic for persons who are not elected as
parliamentarians and therefore lacking legislative mandate to make laws. Administrative law
makers do not have parliamentary experience and are likely to abuse delegated legislation as was
held in Akingbade v. LTC.

d) It is a violation of the Rule of Law: The making of delegated legislation by administrative

authorities without the observance of the usual law-making procedures is a fundamental defect,
and a violation of the rule of law as was held in Liversidge v. Anderson.

e) It encourages arbitrariness and dictatorship: The possession of the power to make the law
more often than not makes the executive or administrative authority too powerful, bold, over
confident, insolent, arrogant, and more likely to be arbitrary and dictatorial in his disposition and
action as was held in Williams v. Majekodunmi.

f) There is a total lack of or insufficient consultation: Commonly, there is total lack of or

insufficient consultation of stakeholders before delegated legislations are made. Furthermore,
there is no general provision of law for the consultation of concerned interests before the relevant
subordinate authority to whom power has been delegated should go ahead to make the delegated
legislation. The court confirmed this principle in AHFIT Board v. Aylesbury Mushroom Ltd.

In conclusion, delegated legislation refers to rules made by administrative authorities who

have been conferred with law-making powers and this practice has its advantages as well as its
disadvantages as discussed above.

4. Implementation Problem and Prospects of the Code of Conduct in Nigeria

January 1, 2017

In order to ensure the efficacy of Public Officers in governance as well as transparency

and accountability in the performance of their functions, the Code of Conduct was designed. The
Code of Conduct Bureau and Tribunal Act is an Act to provide for the establishment of the
Code of Conduct Bureau and Tribunal to deal with complaints of corruption by public servants
for breaches of its provisions. Section 1(1) of the Act provides for the establishment of the Code

41
of Conduct Bureau. Section 1(2) provides that the Bureau shall consist of a chairman and ten
other members who shall be persons of unimpeachable integrity in the Nigerian Society and who
at the time of their appointment are not less than 50 years. Section 20 of the Act establishes the
tribunal. Section 3 provides that the Chairman and the other members shall be appointed by the
President of Nigeria.

The Code of Conduct Bureau is a legal institutional framework established by the 1999
constitution to help combat corruption in the country. The Economic and Financial Crimes
Commission (EFCC) was also established by the EFCC Act 2004. The difference between the
Code of Conduct and the EFCC is that the code of conduct is mainly for fighting corruption
amongst government officials.

Section 98 of the Criminal Law of Lagos State has to do with bribery among or
between public officials. Bribery is a criminal offence. Public morality will be defined
differently in various societies and the constitution and the Code of Conduct Bureau did not
define the term “public morality.”

Section 2 of the Code of Conduct Bureau Act, states that the bureau and tribunal was
established to eradicate corruption. It also states that the aims and objectives of the Bureau shall
be to establish and maintain a high standard of morality in the conduct of government business
and to ensure that the actions and behavior of public officers conform to the highest standards of
public morality and accountability.

Section 3 of the Act, provides that the functions of the Code of Conduct Bureau shall be to;

(e) Receive assets declarations by public officers in accordance with the provisions of the
Act

(f) Examine the assets declarations and ensure that they comply with the requirements of
January 1, 2017

the Act and of any law for the time being in force

(g) Take and retain custody of such assets declarations, and

(h) Receive complaints about non-compliance with, or breach of the Act and where the
Bureau considers it necessary to do so, refer such complaints to the Code of Conduct

42
 Tribunal established by Section 20 of this Act and doing so in accordance with the
provisions of Sections 20 to 25 of the Act.

Provided that where the person concerned makes a written admission of such breach or of non-
compliance, no reference to the Tribunal shall be necessary.

Section 5 of the Act and the Fifth Schedule of the 1999 Constitution of the Federal
Republic of Nigeria provides for the Code of Conduct for Public Officers. The former provides
that a public officer shall not put himself in a position which will conflict with his personal
interest and his duties.

Part 1, Section 19 of the Fifth Schedule provides that a Public officer is anyone mentioned in
Part II of the Schedule.

Sections 2-13 of Part 1, of the Fifth Schedule provides those instances when a public officer‟s
personal interest is in conflict with his duties.

Section 23(1) of the Act gives power to the tribunal to punish offenders, where the Tribunal
finds a public officer guilty of contravening any of the provisions of the Act, it shall impose any
of the punishments specifies under Section 23(2) of the Act.

Some problems of the Code of Conduct has hindered the progress of this body in Nigeria.

- Bribery and Corruption stands out among the problems of this body that was designed
to fight this same societal evil. Thus, it has become a case of the hunted hunting the
hunter. This has constituted a clog in the wheels of progress of this body as members
who were employed to fight this evil cannot do so efficiently because of their
involvement in the act.
- Abuse of Power on the part of members of the Bureau also constitutes a major
problem to the Code of Conduct and therefore affects its efficiency.
January 1, 2017

- The Bureau also suffers from gross mismanagement of funds and finances and this in
turn results in inefficiency in the use of productive capital.
- The Lack of Purposeful Leadership and clear-cut goals or targets affects the efficacy
of the Bureau and results in substandard provision of services.

43
The Code of Conduct Bureau and Tribunal is full of potential and prospects and if well managed
would help the Government in effectively battling the nationwide problem of Bribery and
Corruption at all levels of National life that is prevalent amongst public officials.

It would also help to instill moral values in public officers and help maintain a high standard of
public morality among them.

In conclusion, the Code of Conduct has been designed and established to help combat the
problem of corruption in the country and the implementation, problems and prospects are as
highlighted and discussed above.

5. Scope Powers Functions and Limitations of the Economic and Financial Crimes
Commission

The Economic and Financial Crimes Commission (EFCC) is an anti-corruption agency

that was established as a law enforcement agency that investigates financial crimes such as
advance fee fraud (419), and money laundering under the EFCC (Establishment) Act 2004.
EFCC is an inter-agency commission comprising of a twenty-two (22) member board drawn
from all Nigerian Law Enforcement Agencies (LEAS) and regulators.

Section 1(1) and (2) provides that the EFCC is a body corporate with perpetual
succession and common seal. This section establishes the body.

Section 2 provides for the composition of the commission. It shall consist of a chairman who
shall be the Chief Executive and Accounting Officer of the Commission. Such a person must be
such that has gained experience in a considerable law enforcement agency not below the rank of
Assistant Commissioner of Police or its equivalent. The Chairman of the Commission shall
possess not less than 15 years‟ experience. Other members are CBN Governor or his
representative, Head of Ministry of Justice, Finance and so on, Chairman of NDLEA or his
January 1, 2017

representative, MD of Insurance Corporations, IGP or his representative, Representative of

Comptroller General of Custom Service, Immigration Representative etc.

Section 2(3) provides for that the Chairman and members of the EFCC shall be appointed by the
President subject to confirmation of the senate.

44
Section 3 provides that the Chairman and members of the Commission shall hold offices for a
period of four years. Section 6 provides for the functions of the commission. Subsection (1)(a)-
(q) provide inter alia that the commission shall be responsible for the enforcement and due
administration of the provisions of this act. The commission also has the responsibility of trying,
investigating and prosecuting certain offences such as; counterfeiting; illegal fund transfers;
contract scams; enforcement, investigation, coordination of all the economic and financial crimes
adjudication and so on.

It has preventive functions, prosecutorial, educational functions, enforcement functions,

adjudicative, investigative, facilitation of rapid exchange of scientific information and the
conduct of joint operations geared towards the eradication of economic and financial crimes,
collaboration with relevant agencies.

Section 7 provides for the powers of the Commission. It is designated as the Financial
Combative Institution against Money Laundering and enforcement all laws dealing with EFCC
in Nigeria. The power to cause investigation to be conducted as to whether any institution
subjected has committed the offence. The Commission also has power to cause investigations to
be conducted into the properties of any person if it appears to the commission that the person‟s
life style and extent of the properties are not justified by his source of income.

The commission is charged with the duty of enforcing acts related such as; Money Laundering
Act 2004, Advance Fee Fraud and Other Related Offences Act 1995, Banks and Other
Financial Institutions Act 1991. This gives it power to enforce these regulations; including the
Miscellaneous Offences (Provisions) Act and those included in the Criminal Code.

Part IV, Sections 14-18 of the EFCC Act. Financial Malpractices Offences related thereon
provided for in Section 14. Section 15 provides for offences related to terrorism.

Section 16 provides for offences relating to false information. Section 17 creates offences
January 1, 2017

relating to retention of proceeds of a criminal conduct. Section 18 creates offences in relation to

economic and financial crimes and petitions.

A person who without local authority to commit an offence in relation to Section 18 is liable to
imprisonment for three years.

45
Section 19 provides that the Federal High Court, High Court of a State and High Court of the
FCT has jurisdiction to try offences under the EFCC Act 2004.

The EFCC has been faced with some problems which have affected its efficiency. One of
the problems faced by the commission is how to secure convictions of accused persons in courts
especially high profile cases and this is due to the influence of money in politics, the slow
judicial process and this is due to the influence of money in politics, the slow judicial process
and the attitudes of defense counsel in dragging the legal process by focusing more on
procedural issues rather than substantial issues. Rather than securing convictions, what we have
is plea bargains and a host of pending high profile cases in court. For instance, former Governor
of Delta State James Ibori was on December 2009 acquitted of 170 count charges brought
against him by EFCC. But thankfully, he is now being convicted in the United Kingdom.

There is also lack of strong institutional mechanism out in place to fight corruption. If these
institutions are made autonomous and independent and free from political interference, they
would be able to function effectively, thereby securing conviction of accused persons.

In conclusion, the EFCC was designed and established as a policy response to fight the
problem of corruption by the federal government. Its scope, powers, functions and limitations are
as discussed above.

6(a) Rule of Law: The concept of rule of law is considered to be the oldest of all constitutional
concepts and is one of the most basic concepts since it has given birth to other constitutional
concepts. The concept is also recognized as a synonym of law and order. The roots for the
concept of rule of law can be found in ancient Greek philosophies and its obsession with
governmental powers, in the theories of natural law. Origins andjustifications for the concept of
rule of law were found in the writings of John Locke on “social contract”. He believed that the
source of political power was derived from the people and not imposed from above.
January 1, 2017

According to Aristotle, “the rule of law is preferable to that of any individual.” Bracton opined
that; “the king himself ought not to be subject to man, but subject to God and to the law, because
the law makes him king.” In Gouriet v. Union of Post Office Workers & ors, Lord Denning
noted “Be you ever so high, the law is above you”

46
The last stage in the development of the concept of rule of law came with the writings of A.V.
Dicey who gave the tripartite formula of;

- Absence of arbitrary power;

- Equality before the Law; and

- Enforcement of Fundamental Human Rights.

a. Absence of arbitrary power: This means that no man should be punished or made to suffer for
any law that is not known or established. Also, nobody should be punished for an offence
without notice of the commission of the offence. Where this is not the case, there is an arbitrary
exercise of power. This principle also excludes the existence of prerogative or wide, arbitrary or
discretionary powers. It also means the supremacy or predominance of regular law. This
therefore excludes the exercise of discretionary powers often wielded by administrative agencies.
This aspect of his theory has been greatly criticized especially because administrative agencies
have become a veritable fourth arm of government which deals with the implementation of
highly technical and complex matters involving immediate interests of citizens.

b. Equality before the Law: This simply means the equality of all persons before the law and the
equal subjection of all classes to the ordinary laws of the land as administered by the ordinary
law courts. He however allowed for some modifications here because some acts of parliament
gave judicial or quasi-judicial powers to some executive authorities. This principle is not strictly
applied in practice. For instance, Section 308 of the 1999 Constitution confers immunity on
certain persons. There are also inequalities and preferential treatments in certain professions e.g.
the privileges that a Senior Advocate of Nigeria enjoys as against other lawyers. There is also
circumstantial inequality which often occurs where people receive favours from whoever is
giving them because of the special relationship between them. In addition, social and economic
inequalities in society also affect the subjection of persons to the operation of the law.
January 1, 2017

c. Guarantee of Fundamental Human Rights: The third principle is the enforcement of the
fundamental human rights usually guaranteed by the constitution. Thus, there are judicial
decisions determining the rights of private persons in particular cases brought before the courts.

According to Mowoe, from Dicey’s three postulations, it is obvious that before the rule of

47
law can exist in a society, the following must be in place;

(a) Supremacy of written regular law made by the lawmakers;

(b) Certainty and regularity of laws;

(c) Absence of arbitrary or wide discretionary powers on the part of government or its
agencies;

(d) Equality before the law;

(e) Administration of the law by the ordinary law courts;

(f) Enforcement of some minimum rights.

The Diceyan formulation of rule of law has been subjected to severe criticisms by scholars.
Mowoe opines that Dicey‟s work was partly as a criticism of the French ‘droit administrative
under which a special court was established for administrative actions. RFV Heuston is of the
view that it has been said that Dicey erred in saying that the doctrine of “rule of law” excludes
the existence even of wide discretionary authority on the part of government, and also been
criticized as an attempt to turn particular political and economic theories into a constitutional
doctrine, especially as the granting of wide discretionary powers to ministers through simple
delegation of powers is now a settled feature of legislation and the process of delegation of
powers by the Legislature under most modern constitutional governments.

It is also applicable under Nigerian Constitutional Law. For instance: the Supreme Court‟s
decisions in Ilori v. State and Ibrahim v. State in interpreting Sections 160 and 191 of the 1979
Constitution to confer wide discretionary powers on the Attorney-General of the Federation and
the States in the exercise of the power to enter a nolle prosequi in criminal trials. In Stitch v.
A.G. Federation, it was held that the exercise of discretionary powers of the minister is subject
January 1, 2017

to judicial review, following the English decision in Padfield v. Ministry of Agriculture,

Fisheries and Food. In Iwuji v. Commissioner for Establishment per Karibi-Whyte JSC, the
Supreme Court expounded on the law of discretionary powers.

HWR Wade is of the view that Dicey‟s views were based on a mistaken conclusion that the
administrative courts of France existed for the purpose of giving officials certain special rights,

48
privileges or prerogatives as against that of private citizens. This is however not the case since
courts greatly compensate citizens aggrieved about administrative actions. According to Wade,
the rule of law connotes the following in modern times; supremacy of the law, all acts of
government to be conducted within a framework of defined rules and regulations, an independent
judiciary to pronounce on the legality of government actions, equality before the law with
recognized exceptions and no punishment outside the authority of the law.

In Nigeria, under civilian rule, the function of rule of law is performed by a supreme
constitution which ensures fair hearing of trials in all cases and guarantees the preservation of
rights (except where deprivation is allowed under the provisions of the constitution) through the
subjection of all classes and persons including government and its agencies to its provisions.

The idea of equal subjection of governmental authorities and personnel and the citizens
alike to the law and the implied prohibition of exemptions based on governmental authority or
position held by any public official or arm of government is a cardinal aspect of rule of law
which has been interpreted to mean that no one should be above the law under Nigerian law as
expressed in the case of Military Governor of Lagos State v. Ojukwu. In Kalu v. The State,
Oputa JSC in espousing the principle of equality before the law aptly stated that; “it should be
the same open and even-handed justice, blind to all social distinctions and disparities in wealth
and status and no respecter of persons.”

The provisions of Section 6(6)(b) of the 1999 Constitution vests power of judicial review on the
judiciary on all actions of the legislators, ministers and administrative agencies. The requirement
of equality before the law has also been extended to mean the absence of discrimination between
individuals in governmental actions and decisions based solely on unfair or arbitrary grounds,
such as race, colour, ethnicity, place of origin, political opinion, creed or sex, religion and this is
expressed as the social objective of Section 17 and made justiciable as a right to freedom from
discrimination in Section 42.
January 1, 2017

In Aoko v. Fagbemi, the court held that nobody could be punished for an offence that
was not part of any written law as at the time it was committed. In Shugaba Abdulrahman
Darman v. Federal Minister of Internal Affairs, the court held that the deportation of a family
member of the Great Nigeria People‟s Party and a majority leader in the Borno state house of

49
assembly was arbitrary, oppressive and unconstitutional being contrary to the provisions of
Section 23 and 28 of the 1979 Constitution. In Attorney General of the Federation v. Attorney
General of Bendel State, the Supreme Court held that the procedure adopted by the national
assembly in passing the appropriation bill was unconstitutional, null and void. In other words, it
is contrary to the „rule of law‟ as represented by the constitution. In Attorney General of Abia
State and Others v. Attorney General of the Federation, the Supreme Court held inter alia, that
no law enacted by the national assembly can constitutionally or validly increase or alter the
tenure of office of elected officers of the local government except in relation to the Federal
Capital Territory Abuja. In Nigerian Soft Drinks Company v. Attorney General Lagos, the
Supreme Court held inter alia, that the Ogun State Law which sought to regulate inter-state trade
and commerce was unconstitutional and the VAT Decree 102 usurped the residual powers of the
state under item 9 of the concurrent legislative list, by purporting to deal with such trade was
inconsistent with the constitution. In Doherty v. Balewa, the plaintiff bank sought a declaration
that the Commission of Tribunal and Inquiry Act under which the commission was appointed
was unconstitutional since it purported to oust the jurisdiction of the courts and was contrary to
the provisions of the constitution. The Federal Supreme Court held that the Act was not within
the legislative competence of the Federal Parliament in so far as it purports to have effect in
relation to matters and things within the Federal competence anywhere in the Federation. Also,
the general powers given to the prime minister under Section 3(1) were held to be in excess of
the powers of the parliament under the constitution. Also, the provisions excluding inquiry by
any court were unconstitutional as they purported to limit the jurisdiction of the court.

In Gov. Peter Obi v. INEC, Peter Obi was sworn in as Governor of Anambra following the result
of a tribunal which unseated Chris Ngige on 17th March 2006 and he told INEC not to conduct
elections on 14th April, 2007 as the office would not be vacant in accordance with Section
180(2a) for his four year tenure. INEC conducted election despite the suit in court. He lost at
trial and appeal court but Supreme Court was in his favour and Andy Uba was asked to vacate
January 1, 2017

office. Also, in Ameachi v. INEC, Amaechi won the PDP Gubernatorial elections but his name
was substituted for Omelua while his suit was pending, elections were held and Omelua was
sworn in. the Supreme Court ordered Omelua to leave office and Amaechi should be sworn in.
the Supreme Court ordered Omelua to leave office and Amaechi should be sworn in. Also, in
Edo where INEC declared Oseirhemen as winner, after investigations, Oshiomole was sworn in

50
and rule of law was upheld. In A.G. Bendel State v. Aideyan, the appellant state government
purportedly acquired the plaintiff respondent‟s building. Not being satisfied, the respondent sued
the state government. On appeal, the Supreme Court held that the respondent was entitled to his
building. Any act of governance which is not covered under an enabling law is a nullity.

Although it is technically not possible for the rule of law to be in existence under a
military government because the prerequisites for such existence cannot be realized under
dictatorial rule since the manner of coming into power negates the principles of the supremacy of
the law provided for under Section 1(2) of the 1999 Constitution, the Supreme Court has held in
a plethora of cases that the rule of law is tenable under a military regime. In Military Governor
of Lagos State v. Ojukwu, the Supreme Court declared the act of the executive (military) as
executive lawlessness and held that the rule of law and due process must be observed even in a
military regime. In Lakanmi and anor. v. A.G. Western State, the court also espoused the
doctrine of rule of law under military rule.

Also, in Jackson v. Gowon, the court held that if it is proved that a particular section of the
constitution will be violated by the proceedings in the tribunal of inquiry decree, then, of course,
whether there is a provision that no court of law should inquire into such proceedings then one
would be bound to declare that such a proceeding is invalid and unconstitutional.

In conclusion, the rule of law is the most basic of all public law concepts and is the bond
that binds a democratic society and has even been held to be in existence in a military or
dictatorial regime.

(b) Separation of Powers: The doctrine of separation of powers is fundamentally a doctrine

opposed to the concentration of state sovereign powers in a single person or body of persons,
since that may lead tot they tyranny and threat to democratic governance, and this doctrine has
been expressed in stronger or weaker form in many constitutions. It is seen as one of the devices
January 1, 2017

used by Anglo-American system of government to protect the rule of law and prevent the
exercise of arbitrary power by the sovereign. The concept stemmed from the writings of Locke
and Montesquieu. The former argued that it is foolhardy to give lawmakers the power to execute
laws made by them because, in the process, they may exempt themselves from the observance of
the law. To prevent arbitrariness, he championed creation of a constitutionally limited

51
government and three-fold division of government into:

(d) Legislative power for creation of rules;

(e) Executive power by which laws are enforced; and

(f) Federative Powers which concerns making of war/peace and external relations.

He did not advocate separation between legislative and federative powers. To Montesquieu,
“when the legislative and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty.”

Thus, the kernel of separation of powers is the non-fusion of the functions of government in one
person or body of persons i.e. exercise of law-making powers by the legislature, the
implementation or exercise of executive powers by the executive and the interpretation or
adjudicative powers by the courts or independent judiciary.

However, a complete separation of powers, in the sense of division of the three functions of
government amongst the three arms with no overlapping or interrelationship i.e. complete
compartmentalization of powers, even if theoretically feasible, will not be practically viable as it
will make governmental powers inoperable and bring the government to a standstill. According
to Oyewo, a corollary to the doctrine of separation of powers is the principle of “checks and
balances” which seeks to secure the control or limitation of power vested in one arm of
government by another arm of government, as exemplified in the exercise of lawmaking powers
of the legislature under modern constitutions whereby it is circumscribed or checked by the
requirement of assent or veto by the executive, or the exercise of legislative or executive powers
that is subject to the judicial review of the courts. The spectrum of the adaptation of the doctrine
of separation of powers has varied between the form of constitutional democracy. Thus in a
parliamentary system, the powers of both the legislature and executive are fused e.g. The British
January 1, 2017

Constitutional Democracy model. In a Presidential system, there is a clear separation of powers

in the „functions and functionaries‟ between the various arms of government e.g. The United
States of America Constitutional Democracy model.

Various writers, jurists and scholars have commented on the doctrine of separation of powers.
According to Blackstone, “in all tyrannical governments, the supreme magistracy, or the right

52
both of making and enforcing laws is vested in one and the same man or one and the same body
of men; and whenever these two powers are united together, there can be no public liberty.”
Prof. Ben Nwabueze SAN opines, “Concentration of government powers in the hands of one
individual is the very definition of dictatorship, and absolute power is by its very nature
arbitrary, capricious and despotic.” James Madison, a republican and 4th President of the United
States of America had this to say, “… there can be no public liberty where the legislative and
executive powers are united in the same person or body of magistrates or if the power of judging
be not separated from the legislative and executive powers.”

The adaptation of this concept has been a prominent feature of Nigerian Constitutions since
independence. The 1960 and 1963 Constitutions adopted the British concept of separation of
powers whereby power was shared between the judiciary on one side, and the parliament and the
executive on the other. However, the 1979, 1989 and 1999 Constitutions adapted the American
style, where there is a clear separation of the powers of the government. Under these
Constitutions, Section 4 vested legislative powers in the National Assembly and state house of
assembly, Section 5 vested executive powers on the President and Governors and Section 6
vested judicial powers in the constitution established by the Constitution. The separation is also
that of functions and functionaries as enumerated in Chapter V (legislature), Chapter VI
(executive), and Chapter VII (judicature) of the Constitution. Thus, in keeping with the spirit of
the concept, Section 147(4) of the Constitution provides that a member of the legislature
appointed as a minister of the federation must vacate his seat in the legislature.

However, the strict compartmentalization or division of power is not practicable in

modern government, as the constitutional arrangement allows for the practice of corollary
principle of checks and balances by involving the different arms of government in the discharge
of the functions of the other arms of government. Thus, Abiola Ojo observed that;

“… a complete separation of powers is neither practicable nor desirable for effective

January 1, 2017

government. What the doctrine can be taken to mean is the prevention of tyranny by the
conferment of too much power on anyone, person or body and the check of one power by
another.” Thus, even when a power is primarily vested in one arm of government another arm of
government can be constitutionally involved in the performance of that major function.

53
Thus, under Sections 58 and 59 of the Constitution, the President can exercise veto powers over
laws made by the legislature, but such can be overruled by two-thirds majority of the National
Assembly. Thus, in National Assembly v. President of the Federal Republic of Nigeria, the
court held that a Presidential veto can only be overturned by the votes of two-thirds majority of
the whole house and not a quorum and there must be a full reconsideration of the vetoed bill
before being passed into law. Also, in Olisa Agbakoba SAN v. The National Assembly and The
A.G. of the Federation, it was held that without the President‟s assent the National Assembly
cannot validly exercise its powers to amend or alter the Constitution under Section 9 of the
Constitution. Section 32 of the Constitution provides that the President can make regulations on
citizenship but it must be laid before the legislature. The Constitution by virtue of Sections 175
and 211 of the Constitutions vests the power of prerogative of mercy or pardon on the President
and State Governors. These powers clearly amount to a check on the powers of the judiciary to
impose sentence after a due process of adjudication. This is also the case in the appointment of
judges even though with the approval of the legislature. The provisions of Section 147(2) and
192(2) of the Constitution which empowers the legislature to confirm the President‟s or
Governor‟s appointments of the members of the executive council is a clear imposition of
“checks and balances” as a limitation on the application of the principle of separation of powers.
Thus, in Inakoju v. Adeleke, the Supreme Court adopted a pragmatic approach in its
interpretation of constitutional provision adopting the principle when it noted that the principle
of separation of powers under the constitution is meant to guarantee good governance and
development and to prevent abuse of power. Section 59 grants the National Assembly the power
of budget approval through the passing of appropriation bills. Sections 80-83 grants the National
Assembly power of control over public funds. Section 88 confers quasi-judicial powers of
conducting investigations into exercise of executive powers by the Minister or the Legislature.
Section 84 of the Constitution confers the power to determine the remuneration of members of
the executive and judiciary. The investigative power of the legislature is aimed at exposing
January 1, 2017

arbitrariness, abuse of power, corruption and bad governance on the part of the executive.
Section 143 confers the power of impeachment on the legislature as a result of „gross
misconduct‟. Constitutional procedure must however be followed. In Morebishe v. Lagos State
House of Assembly, the court stated that the purpose of separation of powers under the
constitution is to prevent exercise of arbitrary powers by any of the three arms of government.

54
However, Oyewo opined that, “in practice the principle of separation of powers brings about
conflicts, deadlocks and threats of divided and fail government when two arms of government
clash intensely over issues that involve the exercise of their powers.” In trying to gain an upper
hand, the legislature tend to resort to the threat of or use of the power of removal or
impeachment of the chief executive until recently when the supreme court in Inakoju v. Adeleke,
where it gave a strict interpretation to the impeachment provisions to overrule the earlier liberal
interpretation of the court of appeal in Balarabe Musa v. Hamza. This was the most
constitutionally compelling power of the legislature over the executive.

Also, Section 6(6)(b) provides for the separation of judicial function and for the courts to
be able to interprete the constitution and laws and adjudication between the arms of government
on the one hand and between the governmental organs and citizens or group of persons on the
other hand. In Governor of Kaduna State v. Kaduna State House of Assembly, the governor of
Kaduna State sought a declaration that the amendments of the Local Government Edict were
void because they encroached upon his executive powers because they violated Section 4 and 5
of the 1979 Constitution the court declared some of the amendments void and some
unconstitutional and held inter alia that the doctrine of separation of powers is enshrined in the
1979 Constitution. In A.G. Bendel State v. A.G. Fed and Ors, the court held inter alia that by
virtue of Section 4(8) of the 1979 Constitution, the courts of law in Nigeria have the duty to see
that there is no infraction of the exercise of legislative power, whether substantive or procedural,
as laid down in the constitution. If there is such infraction, the courts have the power to declare
any legislation passed pursuant to it unconstitutional and invalid. In Honourable Godwin
Jideonwo and Ors. v. Gov. of Bendel State and Ors. the High Court held among other things
that the constitution clearly sets out the powers of the three arms of government, and if the
legislature passes any law which is beyond its competence, and which it has no jurisdiction to
pass, whether or not it was passed by all the members of the house, any member of the house of
the public who is affected can challenge it in court, and nothing prevents the court from setting it
January 1, 2017

aside and declaring it ultra vires the legislature. Also, as was held in Adesanya v. President of
Nigeria and Tony Momoh v. Senate of the National Assembly, nothing prevents a court of
competent jurisdiction from hearing and determining matters that had been discussed in the
house.

55
 In conclusion, the doctrine of separation of powers seeks to prevent anarchy and
arbitrariness by decentralizing powers, however, since a complete decentralization of power is
not possible, the doctrine of checks and balances has been developed as its corollary in keeping
with the spirit of preventing arbitrariness.

(c) Supremacy of the Constitution: Supremacy of the Constitution otherwise known as

„Constitutional Supremacy‟ simply means that the constitution is superior (both substantively
and procedurally) to any law or any other legally enforceable instrument or expression. So,
where the provisions of the constitution is in conflict with any other law, the provisions of the
constitution will prevail and render such law or legal normative expression or instrument null
and void to the extent of its inconsistency. This concept or doctrine is amongst countries with
written constitutions like; USA, India, Nigeria, etc. The concept of constitutional supremacy is
entrenched in the 1999 Constitution of Nigeria by virtue of Section 1(1) and (3) of the
Constitution which jointly provide that the constitution is supreme and superior to all other laws
and any law which is inconsistent with the provisions of the constitution shall be declared null
and void and unconstitutional to the extent of its inconsistency.

The doctrine of supremacy of the constitution became applicable under the 1979 and
1999 Constitutions of Nigeria. This is because the 1960 and 1963 Constitutions practiced
parliamentary supremacy. This doctrine which is now applicable under our constitution was
adapted from the American Constitutional Law which practices supremacy of the constitution as
derived from the supremacy clause Article VI Clause 242 and the decision of the Supreme Court
in Marbury v. Madison. Also, Alexander Hamilton, one of the framers of the American
Constitution explains that there is often an irresistible tendency on the part of the legislature to
want to absorb other arms of government. As a result, modern democracies rather opted for
entrenched constitutions which operate the concept of constitutional supremacy which thereby
limits powers of government.
January 1, 2017

Section 6(6)(b) of the constitution further entrenches constitutional supremacy by the

power of judicial review of all actions of government and persons. Thus, when any act of
government or its agencies or persons is inconsistent with the provisions of the constitution, it is
declared null and void by the courts. Thus, the Supreme Court has been able to declare void
decrees that are inconsistent with the constitution upon the coming into force of the constitution

56
due to the supremacy of the constitution. Thus, in A.G. Lagos State v. A.G. Federation, with the
coming into force of the 1999 constitution, the court declared the Urban and Regional
Planning Act (Decree No. 88) of 1992, null and void and inconsistent with the constitutional
arrangement for the exercise of legislative powers under the 1999 constitution.

Also, in Kotoye v. CBN and Others per Nnaemeke-Agu JSC held that the constitution is not
only the supreme law of the land but also in appropriate metaphor, the touch stone and yardstick
of the measurement of the validity of all other laws. In Fawehinmi v. Abacha, the court held that
the constitution is the supreme law of the land is superior to any other law or international treaty.
Udoma JSC stated in the case of Rabiu v. State that; “… the present constitution has been
proclaimed the supreme law of the land…” In Attorney General of Bendel State v. Attorney
General of the Federation and Others, the court declared unconstitutional the procedure by
which the appropriation bill was passed by the National Assembly. Again, the court held in
Ibidokun v. Adaralode, inter alia that the provisions of Section 41 of the Land Use Act is
contrary to that of Section 272(1) of the 1999 Constitution and that it purports to exclude the
jurisdiction of the high court in relation to land matters in rural areas, hence, it is null and void.
Similarly, in INEC v. Musa, the Supreme Court in pronouncing on the implication of the
supremacy of the constitution on constitutionality of all statutory provisions applied the „doctrine
of covering the field‟ to declare void such statutory provisions of the Electoral Act and
guidelines made pursuant thereto by the INEC to the extent of their inconsistency with the
provisions of the constitution. The court has also declared and affirmed the supremacy of the
constitution in relation to exercise of legislative and executive powers. An example of a case
where the court did this is Inakoju v. Adeleke.

In Adewole and Ors. v. Jakande and Ors. per Omolulu-Thomas J. held that the circular
proposed by the Lagos State Ministry of Education which proposed the abolition of private
primary schools in a bid to provide equal education opportunities for all children in the state was
January 1, 2017

unconstitutional, illegal, invalid and null and void.

The doctrine of supremacy of the constitution has also been a veritable tool for the “strict
scrutiny” of all executive and administrative actions that infringe upon the fundamental rights of
citizens guaranteed under Fundamental Rights provisions of Chapter IV of the 1999
Constitution. In Ugwu v. Ararume, the court held that the right of access to court is

57
constitutionally guaranteed and could not be denied by any other law or rules of a political party.

Also, the courts have upheld the fundamental nature of the constitutionally guaranteed rights and
invalidated proceedings that violate the right to fair hearing. Thus, in the case of Zideeh v.
RSCSC, the court held that the source of the requirement of the respect for the right to fair
hearing is the constitution and the right cannot be easily waived or taken away by statute. The
courts have also upheld the actions that violate the constitutionally guaranteed rights. Thus, in
the case of Adams v. A.G. Federation, the court pronounced the rule of strict scrutiny of powers
which seek to deprive the citizens of their right to personal liberty.

In military or dictatorial regimes, the concept of supremacy of the constitution is always

the first to be abrogated. This is primarily because the way they assume power and their style of
governance is prohibited by the constitution. This is also a contravention of Section 1(2) of the
1999 Constitution. Thus, upon coming into power, they promulgate a constitution (suspension
and modification) decree. Thus, Section 1 of Decree No. 1 of 1966 provides that;

“subject to this and any other decrees, provisions of the constitution which are not suspended by
subsection (1) shall have effect su bject to modifications suspended in schedule 2 to the
decree.”

Also, in Lakanmi and Anor. v. A.G. Western State, the federal military government‟s legislative
power was seen to be supreme as the decision was reversed by Decree No. 28 of 1970.

In conclusion, the concept of supremacy of the constitution simply places the provisions
of the constitution over and above the provisions of any other law and is common in countries
with written constitutions but is usually abrogated in military or dictatorial regimes.

January 1, 2017

58
 FIRST SEMESTER, 2013/2014 SESSION

PUL 202: ADMINISTRATIVE LAW1

1(a) On the third of January 2010, eight out of the ten Councilors in Ibim Local Government
Council passed a vote of no confidence on the Chairman of the Local Government Council,
alleging facts of financial impropriety against the said Chairman. As a result of the vote of no
confidence, there was a dreadlock in the administration of the Local Government Council. The
State House of Assembly stepped in and set up an ad-hoc Committee to look into the crisis.
Based on the Ad-Hoc Committee‟s report, the House recommended to the Governor the
immediate dissolution of the Local Government Council.

The Governor accepted the recommendations of the House and by a press release dated the 12 of
January 2010 and signed by the Governor; the Governor dissolved Ibim Local Government
Council and set up in its place a Caretaker Committee consisting of 10 members. Consequent
upon this, the State Government of Ibim is withholding the payment of funds due to the Local
Government Councils from the Federation Account. Advise the relevant parties.

1(b) What are the functions of Local Government Councils as stipulated in the Fourth Schedule
to the Nigerian Constitution of 1999?

2. The Code of Conduct Bureau and Tribunal Act gave the Bureau the mandate to establish and
maintain a high standard of public morality in the conduct of government business and to ensure
that the actions and behavior of public officers conform to the highest standard of public
morality and accountability. Critically examine this statement in light of the criticisms and
challenges facing the Bureau.

3. Rule making procedure is not statutorily determined but administratively formulated by the
administration such that the exercise of rule making power varies according to the needs of the
January 1, 2017

administration.

In the light of the above statement explain administrative rule-making functions, types of rule-
making procedure, procedural problems, and broad mechanisms for the control of rule-making.

4. “The volumes of our laws begin with the primary laws passed by the legislature itself, and go

59
onto give the subsidiary legislation made by a person or body authorized by the legislature to
supplement its enactments. The convenient method of legislation has been in use over the years,
and there are specific provisions in the Interpretation Act, which regulate the making and effect
of subsidiary legislation. It is a fair inference that everyone who assisted in the framing of the
constitution, and in particular the legal advisers who attended the conference, were all aware of
this method of legislation, and there was no intention to require that every bit of legislation made
after independence had to be made by the legislature itself, whether Federal, Regional or else it
would be of no effect” Bairamian, F.J. IN Williams v Majekodunmi [1962] 1 All N.L.R. 413
(No.3) FSC

Discuss the above statement and highlight the method and desirability of delegated legislation
and the rule against sub-delegation.

5. “Red light theories are those which see the aim of administrative law as being to curb state
activity so as to protect the individual”

Examine the theory of administrative law as distinct from the definition of administrative law, in
the light of the above statement.

6. Ladi is a newly employed Civil Servant in the Federal Ministry of Justice, Public Law and
Civil Litigation Department (PL & CLD), reporting to Mrs. Eke, a Principal State Counsel, who
has several State Counsel under her. The PL & CLD provides legal services to all Ministries,
Departments and Agencies (MDAs) within the federation. Ladi, who studied political science,
finds it confusing when Mrs. Eke is always instructing the other State Counsel to be careful in
their classification of the administrative powers of the MDAs their servicing before giving any
legal advice to them, as his understanding has always been that all executive powers aree
administrative in nature. Ladi has now approached you to educate him on the classification of
administrative powers and the legal consequences following from such classification, if any.
January 1, 2017

Advise Ladi.

ANSWERS

1. The first issue arising for legal determination is whether or not the Governor‟s dissolution of
the local government and the appointment of a caretaker committee in its place is constitutional

60
and valid.

Section 7(1) of the 1999 Constitution guarantees the establishment of democratically elected
governments. Their establishment, structure and compositions, finance and functions are to be
promulgated upon by the State Houses of Assembly which also has the authority to repeal or
amend such laws when the need arises. However, the number of minimum number of local
governments in each state has been pre-determined by the constitution in the first schedule.

In Akan v. Attorney General Cross Rivers State, the governor of the then Cross River State
purported to act under the authority of the law passed by the state house of assembly named the
Dissolution of Local Government Councils Law No. 4 of 1979, and dissolved all the local
government councils in the state and proceeded to appoint caretaker committees in their place.
The plaintiff‟s challenged the act of the governor in the high court and it was contended for the
defendant‟s that the law was a valid law. Esin J. of the Cross River State High Court held that
the law was in conflict with and violated Section 7(1) of the 1979 Constitution which is in pari
materia with the 1999 Constitution. In Akinpelu & Ors v. A.G. Oyo State, the learned trial judge
in his judgment stated, „A fortiori, the setting up of a Caretaker Committee, to replace a
democratically elected Council is clearly unconstitutional, illegal and ultra vires the powers of
the 2nd respondent.‟

In Etim Akpan & Ors v. Hon Peter Umah & Ors, on 3rd of April, 2000, eight out of the ten
councilors in Ini Local Government Council passed a vote of no confidence on the Chairman of
the Local Government Council passed a vote of no confidence on the chairman of the local
government council. As a result of the vote of no confidence there was a deadlock in the
administration of the local government council. The state house of assembly then stepped in and
set up an ad hoc committee to look into the crises in the local government council. The
committee, after executing its assignment, submitted its report to the house of assembly, which
considered the report and recommended to the governor of Akwa Ibom state the immediate
January 1, 2017

dissolution of the local government council. The governor who is the 1st defendant/2nd
respondent accepted the recommendation and on the 13th of July 2000, by a press release dated
12th July, 2000, the Governor dissolved Ini Local Government Council and set up a caretaker
committee consisting of the appellants who were the 3rd to 7th defendants in the high court of
Akwa Ibom State. Consequently upon the dissolution, the plaintiff/respondent lost his office as

61
the vice chairman of the council and thereupon instituted an action by way of originating
summons in the high court. By originating summons, the plaintiff now 1st respondent sought
against all the defendants for the determination of the question of the competence of the
dissolution, and setting up of the caretaker committee under the provisions of Section 7 of the
1999 Constitution.

The learned trial judge, Ntem Isua J., granted all the reliefs sought in the originating summons.
Dissatisfied with the judgment, the 3rd to 7th defendants who were members of the Caretaker
Committee as the appellants appealed to the court of appeal and sought clarification as to
whether the state house of assembly cannot make a law to regulate a local government council
plagued with crises; whether the governor of Akwa Ibom state was not competent to dissolve the
democratically elected Ini Local Government Council constitutionally guaranteed under Section
7 of the 1999 Constitution and replace it with the appellants as caretaker committee members.

In application of the above rules, the act of the Governor in dissolving the Local
Government Council and setting up in its place a caretaker committee is unconstitutional and
null and void.

In conclusion, the Governor is advised to reinstate the Local Government Councils

immediately as he has acted ultra vires his powers.

2. The second issue arising for legal determination is whether the State Government of Ibim has
the right to withhold the payments due to the Local Government Councils due from the
Federation account.

Section 162(3) provides that local government can benefit from the Federation account.
Section 162(5) provides that money due to the local government will be paid to the state.
Section 162(6) states that the states must maintain a joint account with the local government
council for the purpose of disbursement. In A.G. Lagos v. A.G. Federation, the Federal
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Government refused the allocation of funds to the local government councils created in Lagos
state and the latter state government challenged the action of the former in court. It was held that
they were entitled to do so as the constitutional procedure for the creation of local governments
had not been complied with by the court.

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 In application of the above rule, since the Local Governments were validly created and
are recognized by the constitution and the State Government has no right to withhold the funds
due to the local government.

In conclusion, the State Government is advised to pay the local governments in the state
all the funds due to them.

1b. Functions of Local Government Councils under the 1999 Constitution

The Local Government as the third tier of Government has been created to perform some
functions at the local level and these functions have been outlined in the constitution.

The functions to be conferred on the local government authority are inclusive of those set
out in the Fourth schedule to the Constitution. Thus, for example, they are constitutionally
expected to participate with the state in the economic planning and development of their area, for
which an economic planning board is to be established. Schedule 4 provides that the function of
the local governments also includes in a summary;

- Collection of rates, radio and television licences;

- Cemeteries, burial grounds, homes for the destitute or infirm;
- Licensing of Bicycles, trucks not mechanically propelled, Canoes, wheel barrows,
Carts;
- Slaughter houses, markets, motor parks, public conveniences;
- Construction and maintenance o roads, streets, street lights, drains, public highways,
parks, gardens, open spaces, other public facilities as may be prescribed by the House
of Assembly;
- Naming Streets, roads, numbering houses;
- Provision and maintenance of public conveniences, sewage, refuse disposal;
- Registration of births, deaths, marriages;
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- Assessment of private houses, tenement rates as prescribed by House of Assembly;

- Control and regulation of outdoor advertising and boarding, movement and keeping
of pets, shops and kiosk, restaurant, bakeries and places for sale of food; licensing,
regulation and control of liquor.

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 The Local Government is also empowered to provide and maintain primary, adult and
vocational education; develop agriculture and natural resources other than minerals; provide and
maintain health services; and perform other functions as may be conferred by the house of
assembly.

In conclusion, the local government was created to cater for the needs of the people at the
local level and in line with this objective, the Constitution that establishes it has also empowered
it to perform the functions highlighted above.

2. Implementation Problem and Prospects of the Code of Conduct in Nigeria

In order to ensure the efficacy of Public Officers in governance as well as transparency

and accountability in the performance of their functions, the Code of Conduct was designed. The
Code of Conduct Bureau and Tribunal Act is an Act to provide for the establishment of the
Code of Conduct Bureau and Tribunal to deal with complaints of corruption by public servants
for breaches of its provisions. Section 1(1) of the Act provides for the establishment of the Code
of Conduct Bureau. Section 1(2) provides that the Bureau shall consist of a chairman and ten
other members who shall be persons of unimpeachable integrity in the Nigerian Society and who
at the time of their appointment are not less than 50 years. Section 20 of the Act establishes the
tribunal. Section 3 provides that the Chairman and the other members shall be appointed by the
President of Nigeria.

The Code of Conduct Bureau is a legal institutional framework established by the 1999
constitution to help combat corruption in the country. The Economic and Financial Crimes
Commission (EFCC) was also established by the EFCC Act 2004. The difference between the
Code of Conduct and the EFCC is that the code of conduct is mainly for fighting corruption
amongst government officials.

Section 98 of the Criminal Law of Lagos State has to do with bribery among or
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between public officials. Bribery is a criminal offence. Public morality will be defined
differently in various societies and the constitution and the Code of Conduct Bureau did not
define the term “public morality.”

Section 2 of the Code of Conduct Bureau Act, states that the bureau and tribunal was

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established to eradicate corruption. It also states that the aims and objectives of the Bureau shall
be to establish and maintain a high standard of morality in the conduct of government business
and to ensure that the actions and behavior of public officers conform to the highest standards of
public morality and accountability.

Section 3 of the Act, provides that the functions of the Code of Conduct Bureau shall be to;

(i) Receive assets declarations by public officers in accordance with the provisions of the
Act

(j) Examine the assets declarations and ensure that they comply with the requirements of
the Act and of any law for the time being in force

(k) Take and retain custody of such assets declarations, and

(l) Receive complaints about non-compliance with, or breach of the Act and where the
Bureau considers it necessary to do so, refer such complaints to the Code of Conduct
Tribunal established by Section 20 of this Act and doing so in accordance with the
provisions of Sections 20 to 25 of the Act.

Provided that where the person concerned makes a written admission of such breach or of non-
compliance, no reference to the Tribunal shall be necessary.

Section 5 of the Act and the Fifth Schedule of the 1999 Constitution of the Federal
Republic of Nigeria provides for the Code of Conduct for Public Officers. The former provides
that a public officer shall not put himself in a position which will conflict with his personal
interest and his duties.

Part 1, Section 19 of the Fifth Schedule provides that a Public officer is anyone mentioned in
Part II of the Schedule.
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Sections 2-13 of Part 1, of the Fifth Schedule provides those instances when a public officer‟s
personal interest is in conflict with his duties.

Section 23(1) of the Act gives power to the tribunal to punish offenders, where the Tribunal
finds a public officer guilty of contravening any of the provisions of the Act, it shall impose any

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of the punishments specifies under Section 23(2) of the Act.

Some problems of the Code of Conduct has hindered the progress of this body in Nigeria.

- Bribery and Corruption stands out among the problems of this body that was designed
to fight this same societal evil. Thus, it has become a case of the hunted hunting the
hunter. This has constituted a clog in the wheels of progress of this body as members
who were employed to fight this evil cannot do so efficiently because of their
involvement in the act.
- Abuse of Power on the part of members of the Bureau also constitutes a major
problem to the Code of Conduct and therefore affects its efficiency.
- The Bureau also suffers from gross mismanagement of funds and finances and this in
turn results in inefficiency in the use of productive capital.
- The Lack of Purposeful Leadership and clear-cut goals or targets affects the efficacy
of the Bureau and results in substandard provision of services.

The Code of Conduct Bureau and Tribunal is full of potential and prospects and if well managed
would help the Government in effectively battling the nationwide problem of Bribery and
Corruption at all levels of National life that is prevalent amongst public officials.

It would also help to instill moral values in public officers and help maintain a high standard of
public morality among them.

In conclusion, the Code of Conduct has been designed and established to help combat the
problem of corruption in the country and the implementation, problems and prospects are as
highlighted and discussed above.

3. Administrative Rule Making

Administrative rule-making is one of the functions performed by administrative agencies.

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Administrators make decisions and regulations now and then to govern conduct. Administrative
decision and rule-making procedures are administrative decision and law making procedures.
They are the processes or procedures by which government or administrative authorities make
decisions and rules to regulate a given thing, situation or persons. It is otherwise known as
administrative law making, administrative legislation or administrative decision making.

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Iluyomade and Eka define it as the assistance of regulations or the making of determinations
which are addressed to indicated but unnamed and unspecified persons or situations – to
distinguish this function from the issuance of orders or findings or the taking of action applying
to named or specified persons or situations – and to consider separately the procedural problems
which surround rule-making when it is carried on by administrative agencies. Malemi defines it
as the making of rules, regulations, determinations, policies, or decisions to regulate a given
thing or situation. Rule-making is the formulation, amendment, repeal of laws, policies, or
decisions by an administrative authority for the purpose of carrying out its objectives.
Administrative rule makers or decision makers consider multifarious factors in making decisions
policies and rules. Thus, a lot of factors bar on the mind of administrators in making decisions,
policies and rules. It is impossible to enumerate all the factors that may operate on the minds of
administrators in making decisions and rules or in adopting a procedure in arriving at the rules or
decisions or rules which are finally made. Therefore it suffices to examine some of the factors
which commonly bear on the minds of administrators in decision and rule-making. Iluyomade
and Eka group them under the following headings: (1) the character of the parties affected; (2)
the nature of the problems to be dealt with; (3) the character of the administrative decision; (4)
the types of administrative agencies exercising the rule-making function; and (5) the character of
enforcement which attaches to the resulting regulations.

The character of the parties affected by administrative regulations varies widely, even when only
those regulations that bear upon private interests are considered. It varies not only with the
number and identifiability of the parties, which have obvious bearing upon the practicability of
adequate notice and a full hearing to all, but, in addition, with the vast differences in the extent to
which groups in the community are organized so as to safeguard their interests in relation to
governmental action. Groups that are so organized can be heard or consulted more readily than
those that are not; and of the latter; many consist of large numbers of ordinary citizens who will
be unrepresented unless the governmental agency itself undertakes to protect their interests.
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The nature of the problems to be dealt with in administrative regulations affects procedure in
evident ways. Thus in matters of governmental nature, where private interests are affected, as
they are, for example, by the hours during which public offices are open for business and by the
forms prescribed for tax returns, it is evident that there is less occasion for permitting interested

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private parties to be heard with regard to proposed regulations than there is where rule-making
operates in a regulatory manner. In the conduct of public services most of the parties that arise
are also of a routine nature, but others, such as the regulations for grazing in the national forests,
assume such commercial significance that some formality of rule-making procedure is called for.
In governmental regulatory activities affecting health and safety, the occasional urgency and the
technical nature of the question arising, falling outside the competence of witnesses, tend to
minimize the need for formality in rule-making procedure. Where, however, important economic
groups are affected by proposed regulations of the same general character, there are strong
grounds for according procedural recognition to their stake in the issues.

The character of the administrative determination which an authority is called upon to make,
having regard to the mental process involved, has an important effect upon suitable procedure.
Some degree of discretion, involving a choice either of the ends to be served or of the means to
be employed in attaining defined ends, is usually involved in rule-making. Regulations for the
routine operations of a public office, for example, involve at least an appraisal of the factors that
bear upon efficiency; and the administrator who is responsible for the regulations must frame
them to serve the prescribed end of effective conduct of his office. There is little occasion for
obtaining facts or opinions from outside interests in the making of such determinations, even
where there are groups that will be affected by the regulations. The same may be said of
regulations in matters of health, such as the imposition of restrictions to prevent the spread of an
epidemic. Although these may bear heavily upon private interests, the determinations involved
are of so expert a character, embracing primarily a choice of means for the attainment of a
definite, legally prescribed purpose, that there is little or no occasion for hearing or consulting
affected groups. The need is rather for towing resolutely the line of duty, regardless of the
possible claims of interest.

The types of administrative agencies exercising the rule-making functions should also be
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considered. If a non-expert Assistant Secretary Commerce is to recommend regulations for

safety concerning flights, the means by which he will inform himself of the matter he is to
control are likely to differ rather widely from those employed in an analogous field by a board of
inspectors who have devoted their lives to the preservation of safety in navigation. If a board or
commission is to make determinations of economic consequence, a formal hearing or

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consultation may be an efficient means of bringing relevant factors before all of the members at
the same time, whereas a single official might inform himself more easily upon the same
question by means of a simple investigation. If an agency is representative of the interests
affected by its acts, the need for hearings and consultations in advance of its determinations
obviously is reduced or eliminated.

The character of the enforcement which attaches to a regulation also has a bearing upon the
procedure which is best adapted to its formulation. If the regulation is subject to challenge in all
of its aspects after its promulgation, the need of advance formalities is reduced or eliminated. If it
binds the affected parties only by requiring them to comply with certain procedures in matters
subsequently arising – as; for example, in future applications for licenses – it is not likely to be
sufficiently weighty in its effects to warrant advance hearings or consultations in regards to its
content. When however, a regulation presents affected parties with the alternative of compliance
or loss of property or liberty, with only limited opportunity or none at all to challenge its
correctness, the need is evident for an antecedent opportunity to influence its content or be heard
in regard to it.

The administrative rule-making procedures that have been developed as a result of an interplay
of the above discussed factors include; (1) Investigational Procedure; (2) Consultative Procedure;
(3) Auditive Procedure; and (4) Adversary Procedure.

Under the investigational procedure, investigation is carried out into the issue or situation at hand
to discover needed information before the rule, law, policy, stand or action is taken. Here the
administrative authority finds it necessary to inform itself concerning the problem or matter it
has to deal. It may set up a committee, panel, commission or team to investigate the matter. Such
investigation body will then seek facts and information, make inquiries, hold hearings, examine
memoranda and reports and so forth and submit a report of its findings to the body that appointed
it, which will then make decisions, rules, policy statement or take action based on that report. In
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a context, this procedure is similar to a parliamentary hearing. Therefore parliamentary

proceedings are a good example of this method of decision and rule-making. Where a parliament
holds legislative proceedings, the members who are representatives of the people are heard and
their diverse and collective knowledge and wisdom are harnessed in an atmosphere designed to
ensure fair discussion and sufficient deliberation. The people can and may make their input by

69
submitting memoranda to parliament or otherwise make representation through the members of
parliament representing their district, or take other popular cause of action such as appeal, protest
and so forth. Parliament often takes necessary investigative steps before passing bills into laws,
or before it takes some other action. However, parliament is comparatively illimitable in the
channels through which it may obtain its information. Therefore, its investigational methods may
be wider in scope and its procedures as informal as the house may desire. Similarly,
administrative authorities may employ investigational procedures in rule-making and decision
making, and deploy its expertise or specialization in the field of endeavor to gather the relevant
data or information it needs to formulate rules or to take action.

Consultative Procedure involves consultation with interested or affected parties, that is, the
stakeholders or persons with special knowledge on the subject or issue at hand, before rules or
laws made or before a policy statement, decision or action is taken. Here the administrative
authority endeavours to consult affected parties and also obtains the necessary expert advice. It
may send the proposed rules or regulations or proposed line of action to the interested parties for
suggestions, objections or comments. Thereafter, it may engage in discussions or correspondence
with the stakeholders in resolution of the differences as may be necessary. Consultative
Procedure is a participative procedure or model. It may even involve referendum by voters to
determine whether a proposed government decision or policy be adopted or rejected. Sometimes,
an advisory committee of the administrative authority may then review the proposed decision,
regulations or recommended course of action before it is finally adopted. In modern times, the
consultative procedure of decision and rule-making has been standardized to a great extent with
the establishment of public corporations and agencies. This is so because many of the statutes
creating such bodies provide for statutory governing or advisory bodies, councils, committee or
body with members drawn from diverse backgrounds, professions, fields or sectors of the
economy, ministries or departments of government which meet from time to time to make policy
decisions and formulate general rules or regulations for the running of such authorities and the
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execution of the functions and duties of such bodies. An example of a participative decision
making is the jury system, where a judge conducts the trial, but the peers of the accused person
make the decision of guilt or innocence, sentence, fine and so forth. Examples of Statutory
bodies, or agencies which have statutory boards or councils which members consult amongst
themselves and advice on important proposed decision, rules or action before they are adopted,

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published or implemented include all the statutory bodies, corporations and agencies of
government, whether or not they are owned by government or they are independent bodies, such
as, the Standard Organization of Nigeria, National Agency for Food and Drug Administration
and Control, the regulatory bodies of chartered professions such as the Nigerian Bar Association,
the Institute of Chartered Accountants of Nigeria etc. Sir William Graham-Harrison in his
evidence before the British Committee on Minister Power explained the importance and
necessity of consultation in decision and rule making thus:

“No minister in his senses… would ever think of making regulations without, where applicable,
giving the persons who will be affected thereby or their representatives an opportunity of saying
what they think about the proposal.”

Where an enabling statute imposes a duty to consult, failure to comply with the requirement may
render the decision, rules and regulations or what was done invalid on ground of procedure. This
is otherwise known as procedural ultra vires. Thus, in Agricultural, Horticultural and Forestry
Industry Training Board v. Aylesbury Mushroom Ltd, after the order establishing the appellants
came into being, it emerged that the respondents were not consulted or represented on the
National Farmers Union and that they had not received a copy of the draft schedule sent to it.
The respondents contended that they were not bound by the order constituting the training board
on the ground that before making it, the Minister was under a duty to consult the association,
since it was an organization “appearing to him” to be within one of the categories of
organizations which under the Act he was duty bound to consult. On appeal, the court held that
the order constituting it did not bind the association since the minister was under a duty to
consult every organization which appears to him to be an organization which fell within the
provisions of the law and not merely one or some of such organizations. In Popoola v. Adeyemo
the parties were involved in a chieftaincy dispute in which consultation was necessary to resolve.
The plaintiff respondent sued the defendants appellants to restrain them on the ground that they
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were not members of any ruling house and therefore should not be consulting nor vie for
appointment to the vacant obaship. On appeal, the Supreme Court held that Section 9 of the
Chiefs Law, Oyo State only states the customary law on the issue. Therefore, the section cannot
be used to accommodate the inclusion of a person or house not eligible in a Chieftaincy
Declaration.

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The Auditive Procedure is the hearing law making procedure. It is the hearing of administrative
decision, or rules, and implementation of action after the hearing of the stakeholders or interested
parties. The procedure here is similar to a court which hears the parties to a suit before it reaches
a decision. Here the administrative authority grants interested parties hearing to express
themselves. The parties then put across their views, submit memoranda, evidence or make other
representations; thereby the administrative authority has access to the views and suggestions of
interested parties. The notice of the holding of such hearing is usually published in the mass
media to enable interested parties and stakeholders appear before it. Formal rules of evidence
may not be observed except for those that will ensure orderliness at the hearing, because the aim
of these hearings is essentially fact finding, and information gathering. Therefore, formal and
technical rules of evidence are usually relaxed in order to discover as much facts as possible and
not hinder the fact finding mission of the hearing. In this regard, these hearings are similar to
parliamentary hearings as contrasted with court proceedings. The advantages of this procedure
are; the proposed decision, rules or proposed action are brought to the affected parties, who are
then given a hearing in defence of their position and the administrative authority making the
decision, rules or proposed action thereby has access to the people and their views.

The adversary procedure is the trial law making procedure. It involves decision making after a
formal hearing of the parties or a trial of the issues. The adversary rule making procedure
involves hearing in accordance with court proceedings such as submission of evidence, cross
examination and so forth. The adversarial rule making procedure is one whereby a commission,
tribunal, panel or committee is set up to find out the cause of a problem and to hear the
representations and arguments of stakeholders, interest groups and persons for or against a
proposed decision, regulation, or policy before it is finally made or action taken. Here, when a
panel is set up, it receives petitions, memoranda, documents and representations and so forth
from the people. It generally hears the arguments, evidence and representations of interested
parties. The parties are more or less granted the status of litigants as in law suits and are allowed
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to engage counsel in presenting their representations and evidence argue their case before the
body of inquiry as they may desire. These administrative bodies usually apply less formal rules
of procedure to enable parties freely present their case and be cross-examined by an opposing
party. The essential goal of these inquiries is fact finding, strict rules of evidence are therefore
relaxed. This is to enable the discovery of much facts and truth as possible, so that the problem at

72
hand can be resolved justly and society moved ahead. However, where a regular court is
involved, it must observe the relevant legal procedures, without breaching the rules of natural
justice or occasioning a miscarriage of justice. At the conclusion of the hearing of the evidence
and submissions of interested parties, the administrative body receiving it, usually compiles and
submits the report of its findings to the government or administrative authority that appointed it.
These reports usually embody; a formal record of all evidence presented by the parties at the
hearing, their findings, and recommendations. The government or appointing body upon
receiving the report is expected to study it together with the recommendations therein and base
the proposed decision, rule, determination, policy, stand or action thereon.

In conclusion, the administrative rule-making functions and the various types of rule-making
procedures as well as their problems are as discussed above.

4. Delegated Legislation

The Law-making power in any democratic setting rightly belongs to the legislature, parliament
or law-making authority. In the case of Nigeria, it is the national assembly made up of senate and
House of Representatives at the federal level and houses of assembly at the state levels
respectively pursuant to the provisions of Section 4 of the 1999 Constitution. However, it is
difficult if not impossible for the supreme law-making body or legislature to make all laws in a
state, thus, it delegates power to make laws to any person or body of persons since it is not
restricted in any way and as long as it does not delegate improperly and does not go ultra vires its
powers as was held in Doherty v. Balewa. The process of doing this is known as delegated
legislation or subsidiary legislation. Attempts have been made by various jurists and writers to
define this concept.

According to Iluyuomade and Eka, subsidiary or delegated legislation, simply put, is law made
by a delegated authority. To Malemi, it is the law made by an administrative authority, public
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authority or agency to whom the constitution or an enabling statute has given power to make
law. Osborn’s Concise Law Dictionary defined it as the Legislation by some persons or body
of persons under statutory authority given to that person or body of persons by statute. Idigbe
JSC in Barclays Bank of Nigeria v. Ashiru defined delegated legislation as a legislation made
by a person or body other than sovereign parliament or the government of the state or Federation

73
by virtue of powers conferred either by statute or by legislation which is itself made under
statutory power.

The Law which empowers the administrative authority or agency to make laws is the
enabling act or law. The delegated legislation as well as the enabling act or law has the same
force of law as well as life span as was held in Shitta-Bey v. Federal Public Service
Commission. This is so unless the delegated legislation comes in conflict with the enabling
statute or a higher law in the hierarchy of norms. When an administrative authority, public body
or agency does what it has no power to do, such an act will be held to be ultra vires and null and
void as was held in Ifezue v. Mbadugha.

The general rule is that where a power is delegable, the method of delegation is
inexhaustive. Therefore power may be delegated to a subordinate in various ways. The method
of delegation includes the following:

(i) Simple Delegation of Powers to Make Subordinate Legislation

(ii) Enumeration of Subjects on which Regulations May be Made

(iii) Delegation to Make Regulations and Obligation to Publish

(iv) Delegation to Make Regulation and Requirement of Laying Before the

Legislature

(v) Delegation to Make Regulations Subject to Confirmation or Approval by, or

Confrontation with, the Minister or Other Authority.

- Simple Delegation of Powers to Make Subordinate Legislation: This refers to a situation where
a statute expressly provides for powers to be delegated to an administrative authority.

Section 21 of the Banking Act, 1958 (now replaced by the Banking Decree of 1966) provides
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inter alia that the minister may make such regulations as may be required from time to time for
carrying into effect the provisions of this Act.

Also, Section 21 of the Explosives Act 1964, provides that the Minister responsible for
explosives may by regulations, make such provisions with respect to explosives as he considers

74
expedient for the purpose of maintaining and securing public safety.

Section 7(1) of the Nigerian Research Institute Act 1964 empowers the council (set up under
the Act) to make regulations, inter alia, for the general purposes of the Act and discipline of staff.

- Enumeration of Subjects on which Regulations May be Made: Here, the enabling act or statute
simply outlines the issues or subject matter over which the administrative authority may make
laws and regulations. It follows therefore that power exercised outside these strictly enumerated
issues.

Section 33(1) of the Firearms Act 1958 empowers the President, after consultation with the
council of ministers, to make regulations covering twelve items (enumerated in the Act) – among
which are the method of application and terms or condition for firearms dealers and licensing
authorities; the procedure for sale or transfer of firearms; licensing fees, etc.

Section 122 of the Labour Code Act 1958 empowers the President in Council to make
regulations for any or all of the items enumerated therein, e.g. personal services due to a chief
under native law and custom.

- Delegation to Make Regulations and Obligation to Publish: Statutes: The enabling Act can
delegate the Administrative Authority to make regulations or legislations and impose a duty
upon it to publish such regulations or legislations so made.

Section 25 of the Citizenship and Leadership Training Centre Act 1960 delegates power to
the Citizenship and Leadership Training Centre Management Committee, established under
Section 4 of the Act, to make regulations prescribing, inter alia, the fees chargeable to the
students or their sponsors for training in the centre and for the due administration and discipline
of the centre. “When approved by the minister… the regulations shall be published in the
Gazette.” Section 10 (2) of the Nigerian Citizenship Act, 1961 states that the President in
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Council may, by order published in the Gazette, add to, alter, amend or replace the third schedule
in this Act. Also, Section 9 of the Nigerian Civil Aviation Training Centre Act 1964
authorises the board to make regulations whenever any act, matter or thing, falls to be prescribed
under this act and when approved by the minister, the regulations shall be published in the
Gazette.

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- Delegation to Make Regulations and Requirement of Laying Before the Legislature: A statute
may delegate powers to the administrative authority to make regulations and may require it to lay
such regulations made before parliament.

Section 12 of the Yellow Fever and Infectious Diseases (Immunisation) Act, 1958. Under
subsection (1), the President or as the case may be, the Governor of a State, is empowered to
declare by order any disease to be infectious and under subsection (2) such an order must be laid
before parliament or the State legislature.

Section 10(3), the Nigerian Citizenship Act 1961, provides that any order made under
subsection (2) of this section, shall be laid before both houses of parliament within 14 days after
the making thereof, if parliament is in session, or if not in session, as soon as may be after the
commencement of the next session.

- Delegation to Make Regulations Subject to Confirmation or Approval by, or Confrontation

with, the Minister or Other Authority: A statute may delegate power to an administrative
authority to make legislations or regulations, subject however, to confirmation or approval by or
confrontation with the Minister or other authority. Thus, Section 15(2) of the Legal
Practitioner Act, 1962, delegates powers to the General Council of the Bar to make rules
governing the financial transactions between a legal practitioner and his clients. The rules so
made shall be approved by the Attorney General of the Federation.

Section 33(1) of the Firearms Act 1958 the President after consultation with the council of
ministers, is empowered to make regulations, inter alia, for the carrying out of the general
purposes of the Act. Under Section 34 of the Act, the President, after consultation with the
council of ministers, may by order, amend any part of the schedule to the act.

Some reasons have been adduced in favour of the practice of delegated legislation and they are
as follows:
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 It reduces the parliamentary workload: Parliament does not have all the time and capacity
required to deal with the volume of legislations required by a modern government or
state. By means of delegated legislation, parliament spreads out and shares the function
of law-making with extra-parliamentary bodies. In this way, parliament lessens its

76
 workload and thereby facilitates, quickens and enhances the law-making process.
Delegation of power is therefore inevitable to ensure efficient and effective law making
and governance.
 It enables experts to legislate on technical matters: Parliament is often required to
legislate on highly technical and specialized matters on which many of its members may
lack the requisite knowledge that may be required to legislate in detail and with
particularity. Thus, in agreement with this view, the British Committee on Ministers’
Powers in 1932 said: “The truth is that if parliament were not willing to delegate law
making powers, parliament would be unable to pass the kind and quality of legislation
which modern public opinion requires.”

It is therefore expedient to delegate the regulation of such a matter to the administrative

body or agency that has the required expertise, whilst parliament retains the usual
legislative control over such subsidiary legislations which are made pursuant to acts of
parliament.

 It saves the time of parliament: By means of a delegated legislation, parliament delegates

powers to certain specialized bodies, and public officers to make minor laws, or detailed
technical or expert regulations required to properly administer the parent or primary laws
made by parliament. This saves time and energy parliament would have expended on
subsidiary legislations. Thus, the practice of delegated legislation enables parliament to
concentrate on the making of broad laws in the form of primary or parent statutes.
 It saves cost for parliament: The practice of delegated legislation saves the financial cost,
human and material resources and formalities parliament would have expended on the
time consuming, tedious and boring process required to implement primary laws made by
parliament.
 It allows for flexibility in administration: Delegated Legislation and delegation of power
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to subordinates reduces the burden on the superiors and allows for flexibility, adaptability
and quick response which is required to deal with administrative problems of ruling
human beings who are not mechanical and robotic creatures. An administrative authority
or agency which deals directly with the people is in a better position to make rules and
regulations tailored to meet contingencies and unforeseen circumstances that may arise

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 from time to time, from day to day or even on the spot.
 It enables quick response to a state of emergency: The delegation of power and delegated
legislation are necessary in times of emergency as parliament may not be able to sit and
deliberate with the slow or cumbersome parliamentary procedures of debates to be
responsive to situations at hand as they unfold. Urgent decisions are needed in such
urgent situations and they are better made by an administrative person or authority. It is
therefore necessary and in the interest of justice to equip the executive or administrative
authorities with the necessary delegated powers by requisite provisions in the constitution
and an Emergency Powers Act under which the administration may take measured and
temporary steps as may be necessary. Delegation of powers and delegated legislation
enables government respond to emergencies, implement emergency measures, or
prosecute war, as the case may be. In Adegbenro v. A.G. Federation and Ors., the
Supreme Court held that a restriction order made by the administrator of western region
of Nigeria was invalid.

The rule against sub-delegation is governed by the maxim delegatus non potest delegare. This
literally translates to; a delegate has no power to delegate unless he is authorised. Thus, a person
to whom an officer or duty is delegated cannot lawfully sub-delegate his functions to another
person, body or authority unless he is expressly or impliedly authorized to do so.

Thus, in Allingham v. Minister of Agriculture and Fisheries, the Minister of Agriculture under
the Defence (General) Regulations 1939, delegated to county agricultural committees his
powers to give directives with regard to the cultivation, management or use of land for
agricultural purposes. The committee then decided that eight acres of sugar beet should be grown
by the occupiers of certain lands, but the committee left it to its executive officer to do the
selection of the field. The executive officer consulted a local sub-committee appointed to make
recommendations to the committee and served a notice on the occupiers of certain fields
January 1, 2017

specifying the field to be so cultivated. The occupiers challenged the decision in court. On the
issue as to whether or not the executive officer could exercise the powers the Minister had
delegated to the county Agricultural Committee. The King‟s Bench Division held that the notices
served by the executive officer were invalid. On the principle of delegatus non potest delegare,
the committee cannot sub-delegate to the executive officer, the powers to determine the land to

78
be cultivated. Therefore, the notice the executive officer served, was ineffective and non-
compliance with it on the part of the occupiers was not an offence.

This rule also applies in cases where the administrative authority is required to perform the
functions personally. Thus, in the case of A.G. Bendel State v. A.G. Federation and 22 Ors., the
Supreme Court held that the National Assembly cannot delegate its law making function to a
joint committee of the National Assembly. However, there are exceptions to the general rule that
a delegate cannot sub-delegate his powers.

In some cases, the constitution or other statute may provide for conditions under which
power may be delegated. Section 5(1a) and (2a) of the 1999 Constitution provides that the
President may sub-delegate his powers and perform his functions through the Vice President,
Ministers and other Officers. A Governor can also sub-delegate his powers and functions to the
Deputy Governor, Commissioners or other Officers of the State Government. Also, by virtue of
Sections 174 (2) and 211 (2) of the 1999 Constitution and by virtue of the Supreme Court‟s
decision in Ibrahim v. State, the duties of the Attorney-General are delegable and can be carried
out by legal officers serving under him in the ministry.

Also, Section 35 of the Firearms Act 1958 provides that the Inspector General of Police may,
by notice published in the gazette delegate all or any of the powers or duties conferred upon him
by this Act (other than this power of delegation) to any police officer or officers. Also, Section 4
of the Emergency Powers Act 1961 provides that regulations made under Section 3 of the Act
may empower such authorities or persons as may be specified in the regulations to make orders
and rules for any of the purposes for which the regulations are authorized and may contain such
incidental and supplementary provisions as appear to the President in Council to be necessary or
expedient for the purposes of the regulations.

Furthermore, where a statute is silent as to whether a delegate can sub-delegate his

January 1, 2017

powers, it is important to whom he delegates the power to exercise in the circumstances. This is
so having regard to judicial review of administrative discretion and the doctrine of ultra vires. If
a junior officer, who has no required status, exercises the function in question, the court will
readily set it aside. In other instances, a delegate of power may sub-delegate duties which are
legally permissible to be sub-delegated, such as duties which do not involve exercise of

79
discretion such as; the exercise of ministerial, executive or administrative powers.

Generally, a delegate cannot sub-delegate his functions without express or implied authority in
the enabling statute or directive. Also, the following powers cannot be sub-delegated; duties
which have to be performed personally, duties which involve exercise of discretion, judicial or
quasi-judicial powers and legislative or rule-making powers.

In conclusion, the practice of delegated legislation is a practice that makes modern day
governance possible. It has some advantages as discussed above, there are various methods of
delegating power and as a general rule a delegate has no power to delegate unless the primary
statute empowers it.

5. Theories of Administrative Law

Administrative Law is the Law that regulates the powers and duties of government and
administrative authorities, and provides remedies for mal-administration and other administrative
wrongs. The main focus of administrative law is the administrative organ of the government
which is the executive.

The primary function of administrative law is to establish the conceptual and jurisprudential
foundation for identifying the body of laws that come under the rubric of administrative law.
This seeks to answer the questions; “What is administrative law?” “What is governmental
power?” “What is a State?” And even, “What is Law?” a lot of these questions are resolved by
theory in the area of political science which is taken for granted by Law.

When we focus on government from the administrative law point of view, the primary concern
of administrative law is how governmental powers originate and how law is administered. The
origin of governmental powers is traceable to constitutional law. however, the main objective of
administrative law is to be able to identify the organ of government that is concerned with the
January 1, 2017

administration or implementation of the law and the structure and mechanism for the
implementation of the law within a given state. Thus, we talk about enabling law that is, the law
upon which the executive administers. It also focuses on the source of the authority for the
structure of the government. It further looks at the procedure by which powers are being
exercised by the executive.

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The second theory focus involves the theory of concentration on the principles and rules for the
process for the interaction and decisions of the administration as they affect the citizens as
individuals, groups, units within the different tiers of government and some of those principles
are borrowed from other areas of law. The role of law in the modern state is evidently a complex
one. Therefore, it will be helpful to recognize how current legal thought and practice can be seen
to crystalize around two contrasting models, labeled by Harlow and Rawlings as “red light” and
“green light” perspective, the former more conservative and control oriented the latter more
liberal/socialist in orientation and facilitative. They both help to describe what administrative law
is and to act as normative (i.e. moral and political) suppositions about what its role in society
ought to be.

The Red Light view can be seen to originate from a political tradition of nineteenth century
laissez-faire (minimal state) theory. It embodied a deep rooted suspicion of governmental power
and a desire to minimize the encroachment of the state on the right of individuals. A.V. Dicey
maintained that the concept of legal sovereignty (the ground rule of our constitution) favours the
supremacy of law. Parliaments (the legislature) establishes a framework of general rules in
society and the executive should govern according to these rules; if not the courts can ensure that
the executive acts within the confines of the laws as enacted. Such a view is closely allied to the
idea of „self-correcting democracy‟ (checks and balances)

All laws, including administrative law, which according to Dicey did not exist separately from
constitutional law, is regarded as an autonomous and coherent discipline, which performs an
important control function (a part of the constitutional system of „checks and balances‟). The rule
of law remains the key concept, ensuring that all public and private bodies, as well as
individuals, only act according to the law as seen in Military Governor of Lagos State v. Federal
Military Governor Ojukwu. This case confirms the rule of law even in a military government. At
its most basic level, then, what has been termed the Diceyan view, which is still influential in
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many judicial and academic circles today, sanctions judicial intervention when and only when,
public bodies (or any other body or individual) exceed their legal power (i.e. act ultra vires or
abuse their power); this assumption being that the bureaucratic and executive power of state
institutions or mechanisms, if unchecked, threatens the liberty of us all.

For red light adherents the judiciary is regarded as being autonomous and impartial, it is imbued

81
with its own standards of independence and fairness, and can be relied upon as a kind of referee
to adjudicate not on the political or even the practical validity of any decision, but simply on the
legality of executive action. The main function of the judiciary is perceived as interpreting and
applying the strict letter of the law. However, today even those lawyers and academics holding a
broadly red light perspective would not accept Dicey’s view in its purest form, i.e. that the
liberty of the citizen is threatened by an evolving system of administrative law conterminously
with the conferment of certain special powers on ministers and officials. They view the danger in
Dicey’s view as being that ministers and officials might tend to shelter behind a body of rules
and delegated powers which have been created to facilitate the tasks of administration. Thus it is
that, in a negative sense, judicial intervention becomes possible as a kind of safety net, by taking
up the democratic slack in those areas where parliamentary control is manifestly found wanting.

Red light assumptions can be identified in decisions displaying a natural resistance to executive
discretion, whenever or wherever this appears to fall outside the law as enacted by the
legislature. In summary, the red light theory relates to the provision of security and policing for
the safety of the citizen by the government as well as the check on the powers of the government
by the judiciary. One of the defects of the red light theory is that while law is considered as
having an essentially adjudicative and control function, there is an obvious reluctance to deal
directly with questions of policy and merits (change), the result of this reluctance to accept the
need for change has been a lack of response to the growing evidence of abuse of executive power
in both central and local government.

The Green Light Theory starts from the standpoint of a more positive social democratic view of
the state, one which impliedly introduces a political and sociological context into law. It is a
position which in essence derives from the utilitarian tradition (usually associated with Bentham
nad Mill and the Fabian Society founded in 1884), the moral imperative being to promote the
greatest good for the greatest number, in this case by egalitarian (equality of right) and
January 1, 2017

ameliorative (better) social reform. A priority in achieving this objective is to encourage the
contribution of the state, regarded as an effective means of facilitating the delivery of
communitarian goals. It does this by assuming responsibility for at least basic minimum
standards of provision, including housing, education, social security and local services.

The Green Light Theory, therefore, relates to the expansion of powers beyond security and

82
policing to social welfare. The expansion of the state has given rise to the centralization of
powers in some areas, e.g. central government, the civil service, agencies and quasi-
governmental bodies; and the broad territorial diffusion of power in others, e.g. the emergence of
local government as an important focus of decision taking and spending in the 19th and 20th
century. In summary, power that is exercised by public bodies has greatly expanded;
accordingly, the mechanisms for accountability have assumed a new importance, particularly
since the 1960s. the liberal and socialist theorists coming from the green light stable, e.g.
Jennings, Griffiths, Robson and Laski, have broadly supported the introduction of policies
aiming to develop public service provision. It has been an equally important objective to
establish organized institutions which are properly accountable but at the same time capable of
delivering these services effectively. For instance in Nigeria, the Nigerian Telecommunication
Service (NITEL), the Nigerian Postal Service (NIPOST), among others were established as
public services to cater for the telecommunication interest of the people. The green light
perspective concentrates more on effectiveness as opposed to a pragmatic one which the red light
adherents hold. Administrative Law, therefore, becomes accepted as part of the total apparatus of
government, not something largely distinct from it. It can be made to act as a regulator and
facilitator to enable social policy to be implemented effectively and fairly.

Lastly, it will be clear that the green light position has historically been based on the assumption
that large scale government is a permanent feature of modern society. But the truth of this is
questioned. In recent decades, there has been a fundamental challenge to this assumption, with a
widespread tendency towards promoting agency status for some central government functions
through the „Next Steps‟ initiative and by the privatization of many services that were once in the
public sector. The Green Light Theory was practiced extensively in Great Britain and has also
been practiced in Nigeria most especially during the military administration.

The third theory of administrative law goes beyond the exercise of powers and the limitation of
January 1, 2017

the exercise of powers of the administrative bodies but rather incorporate the reality of modern
government and the demands of limiting the exercise of power against the balance of fulfilling
governmental aspirations and meeting the needs of the people i.e. balancing the exercise of
governmental powers against fulfilling governmental goals in modern times without necessarily
getting into private areas of activities. Consequently, the third theory of administrative law

83
postulates that governmental power must mainly be exercised to regulate and set out the legal
framework for human activities.

Employing the red and green light theory framework, the third theory would be the AMBER
THEORY with the effect that the welfarist approach under the green light theory is yielding
ground to a commercialized, privatized and regulatory functions of the government. In Nigeria
for instance, public utilities, public corporations, and other public institutions have witnessed
commercialization and in some instances privatization. Indeed, the Bureau of Public Enterprises
(BPE) has supervised the privatization of such entity as the Federal Palace Hotel (which was the
first to be privatized), Nigerian Telecommunication (NITEL), National Insurance Corporation of
Nigeria (NICON) which was privatized and renamed TRANSCORP, Nigeria Electric Power
Authority to Power Holding Company of Nigeria (PHCN), among others. Indeed, government
has embarked on massive digression of its interest in corporate bodies where it held majority
interest. For instance, the Nigerian Airways used to be under the Federal Government control but
due to the shift to amber theory it has now been privatized.

The focus for the exercise of governmental powers under the third theory is regulation i.e.
government is to perform the function of a regulatory body and set the ground rules for the
performance of such services or industry in which hitherto, the government was the main player.
For example, in telecommunication, the main service provider was NITEL subsequent to
commercialization and privatization government now functions as the regulator of the industry
through the Nigeria Communications Commission (NCC) and now we have private service
providers such as ETISALAT, AIRTEL, VISAFONE, MTN, STARCOMMS, MULTILINKS,
GLO etc. Another industry that demonstrates the shift of governmental powers following this
third theory is the banking industry. Government used to be a major player owing shares and
deposits in the banks thereby becoming shareholders but with the privatization of the banking
industry, government is a mere regulatory body. Examples are CBN, FBIC, AMCON, etc.
January 1, 2017

The fourth theory of administrative law focuses on the moral content of law and the provision of
remedies or the remediation for violation, that is, if power is exercised it must be with the moral
content of justice, accountability, good governance and the human rights of the citizens. The
need to have the moral content in the exercise of administrative powers has resulted in the
enactment of several anti-corruption legislations such as ICPC Act 2000, EFCC Act (2004) and

84
most recently the Public Procurement Act 2007 (Act No. 14 0f 2007). Indeed, the need for the
intersection of law and morality in administrative law is driven by the idea of justice in the
exercise of administrative powers and this requires the imposition of rules of accountability and
transparency. A good example is the exercise of investigation powers by the legislature as
provided in Section 88 of the 1999 constitution as part of the legal framework to ensure
accountability and transparency, the Freedom of Information Act (2011) was enacted and its
advocate was Abike Dabiri.

Lastly, in relation to the remediation for violation, which can be expressed in the latin maxim ubi
jus ibi remedium which means „where there is a right there must be a remedy,‟ in the area of
administrative law, several public remedies have been adopted in order to remedy instances of
abuse of powers and of violation of the rights of citizens. Such public law remedies include
mandamus, certiorari, prohibition and habeas corpus. Equitable remedies include declaration
judgement and injunction. Private remedies include damages. Constitutional Law procedure of
Fundamental Right (Enforcement Procedure) Rule made pursuant to Section 46 of the 1999
Constitution.

The Administration has become an indispensable feature of modern day governance. It is

necessary for the organization, management, and achievement of the goals and objectives of any
unit of people, business, department or body. Thus, it has become necessary for a body of law to
be developed to establish, and curtail the powers of the administration.

Administrative Law, however, has no generally accepted definition. Some legal writers and
jurists have attempted to define the concept. The definitions are based on the perspectives of the
different writers and jurists who put them forward. However, here are some of the definitions of
the leading writers in the field. According to Sir Ivor Jennings, Administrative Law is the law
relating to the administration. It determines the organization, power and duties of administrative
authorities.
January 1, 2017

Prof. E.C.S. Wade and Prof A.W. Bradley said Administrative Law is a branch of public law
which is concerned with the composition, powers, duties, rights and liabilities of the various
organs of government which are engaged in administration or more concisely the law relating to
administration.

85
David Stott and Alexander Felix defined Administrative Law as the Law which regulates the
exercise of power conferred under the Law upon governmental bodies.

Prof. H.W.R. Wade, opined that;

“Administrative Law… is the Law relating to the control of governmental powers. This… is the
heart of the subject. All… powers are… subject to legal limitations: there is no such thing as
absolute or unfettered administrative power. It is always possible for any power to be abused…
and the court will invalidate it… if it infringes the limits which the parliament… has ordained.
The primary purpose of administrative Law, therefore, is to keep the powers of government
within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of
authority must be prevented from running amok. As well as power there is duty. It is also the
concern of administrative Law to see that public authorities can be compelled to perform their
duties if they make default… Administrative Law may be said to the body of general principles
which govern the exercise of powers and duties by public authorities.

In the words of Kenneth C. Davies, Administrative Law is the Law concerning the powers and
procedures of administrative agencies. Garner, defined Administrative Law as those rules which
are recognized by the court as Law and which relates to and regulate the administration of
government. David Foulkes, defined Administrative Law thus, “Administrative Law is the Law
relating to public administration… the legal position of public authorities, their powers and
duties and the procedure to be followed in exercising them, their legal relationship with one
another, with the public and their employees.” Eso J.S.C. in Stitch v. Attorney General of the
Federation, defined Administrative Law as the Law that relates to the discharge of functions of a
public nature in government and administration. Prof. P.A. Oluyede, defined Administrative
Law as that branch of our law which vests power in administrative agencies, imposes certain
requirements on the agencies in the exercise of the powers and provides remedies against
unlawful administrative acts. Prof B.O. Iluyuomade and Hon. Justice B.U. Eka, defined
January 1, 2017

Administrative Law as that body of rules which aim at reducing the areas of conflict between the
administrative agencies of the state and the individuals. Prof. Oyelowo Oyewo defined
Administrative Law as the body of law, rules, and regulations, and judicial decisions that deal
with the execution and implementation of laws, the establishment of administrative bodies, their
personnel and the relationship between these bodies and the citizens. The broad issues with

86
which administrative Law is concerned with includes; the organization, functions, and powers of
administrative authorities, public administration and the civil service in the various tiers of
government, public bodies, institutions and agencies, delegation of powers and delegated
legislation.

In conclusion, there is a consensus amongst jurists and scholars of administrative law that
the subject is without a precise definition, however, various scholars have attempted in various
ways to define it. Also, this is distinct from the theory of administrative law as the latter seeks to
create a theory focus by examining the issues the subject seeks to deal with and in doing this
scholars have delved into the field of politics to successfully achieve this. Thus, the definition
and theory of administrative law are different discussions in the field of administrative law.

6. Administrative Powers

Administrative Powers are the powers exercised by the executive arm of government in carrying
out its functions of overseeing and directing the day to day implementation of the laws governing
a body or unit of people. These powers function to direct, execute, rule and manage the
objectives of any unit of people. Administrative Powers are policy-making and decision taking in
nature.

Administrative Powers were initially classified based on their functions into powers that
performed;

(v) Economic Functions

(vi) Social-Welfare functions

(vii) Institutional Functions

(viii) Pure-Governmental Functions

January 1, 2017

However, the British Committee on Ministers’ Powers made a bold but not infallible attempt
to classify powers based on their concept in 1932. Thus, it classified administrative powers into;

(vi) Legislative Powers

(vii) Executive Powers

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 (viii) Judicial Powers

(ix) Quasi-Judicial Powers

(x) Administrative Decision

Legislative Powers: This is also known as the „Rule-Making Powers‟ of the administration. It
refers to the power of the administration to formulate general rules of conduct without reference
to particular cases and usually operating in the future. These Laws usually take the form of Bye-
Laws, Directives, Guidelines and Regulations. They have the same force of law as laws passed
by the Legislature or Parliament.

Executive Powers: This refers to the performance of particular acts by the administration, issuing
of particular orders and making decisions that apply general rules to specific cases. This may
take the form of executive, ministerial or administrative powers and such powers are derivable
from the constitution, legislative enactments or the rules of the administrative body itself.

Judicial Powers: This presupposes an existing dispute between two parties and involves the
application of Laws, rules and principles of law to dispute between parties. It involves the
presentation of the case (not necessarily orally) by the parties, ascertainment of any disputed
facts by evidence adduced by the parties often with the assistance of argument on that evidence,
submission of arguments on any disputed question of law and a decision which disposes of the
whole matter by a finding upon disputed facts and an application of the Law of the land to the
facts so found, including, where required, a ruling upon any disputed question of law.

Quasi-Judicial Power: This kind of power is similar to the judicial power but unlike the latter, it
does not include the submission of arguments on any disputed question of law and the passing of
judgments based on such facts and points of law by the decision-making bodies. Judgment in this
case depends entirely on the Minister‟s free choice. Administrative bodies do not venture into the
January 1, 2017

arena of civil rights and obligations of citizens in the exercise of these powers. Domestic
Administrative bodies exercise this type of power e.g. the senate body of a university.

Administrative Decisions: It can also be referred to as administrative action and it is one in

which the authority in question is not required to employ any of the processes familiar in courts
e.g. hearing of arguments, evidence etc. and is one in which the ground in which the authority in

88
question acts according to his discretion. Such discretionary powers are either pure (without
qualification) or fettered with a duty i.e. the exercise of such powers depend on the performance
of certain duties. The above discussed classes of administrative powers carry with it some legal
implications. Each kind of administrative power confers rights and obligations on the
administrative authority and on the aggrieved party. As a general rule, the following rights and
duties attach:

g) Right to Fair Hearing and Natural Justice

h) Duty to Give Notice

i) Grant of Prerogative Remedies

j) Delegation of Power and the rule against Sub-Delegation

k) Ultra Vires for Unreasonableness

l) Privileged Evidence.

Right to Fair Hearing and Natural Justice: Where an administrative power is judicial or quasi-
judicial, the administrative authority is bound to observe the right to fair hearing and rules of
natural justice as was held in the case of Aiyetan v. NIFOR. The rules of natural justice are
expressed in the maxims; audi alterem partem – hear the other side and nemo judex in causa
sua which means that a person cannot be a judge in his own cause. Also, in the case of Owolabi
v. Perm. Sec. Min. of Education, the court held that the right to fair hearing had been breached
because the respondent did not give the applicants ample opportunity to correct the allegation
that the complainant may have had against them and also because he did not act according to the
principles of natural justice. However, if an administrative power is categorized as legislative,
executive or administrative, the rules of natural justice do not apply as a general rule.
January 1, 2017

Duty to Give Notice: Where an administrative power is legislative or administrative, there is no

requirement to give notice as a general rule, except, a statute provides that notice be given to
persons likely to be affected or that they be consulted as was held in Bates v. Lord Hailsham.
However, where a power is judicial or quasi-judicial then notice must be given to the person to
be affected, otherwise the decision or action thereon, may be set aside for failure to observe the

89
rules of natural justice.

Grant of Prerogative Remedies: A judicial or quasi-judicial administrative power or act can be

quashed or stopped by a prerogative remedy such as an order of mandamus, prohibition,
certiorari etc. However, where an administrative authority acts in a legislative or executive
capacity, a prerogative order of court such as an order of mandamus and so forth may not as a
general rule lie against it to compel the performance of a public duty as was held in Banjo and
Ors. v. Abeokuta Urban District Council. In Arzika v. Governor, Northern Region, the
applicant sought for the application of remedies of prohibition and certiorari, the courts held that
the action of the Governor was not a judicial one and therefore the remedies sought were not
available to the applicant.

Delegation of Power/The Rule Against Sub-Delegation: The general rule is delegatus non
potest delegare which literally translates to; “a delegate has no power to delegate unless he is
otherwise authorized.” However, an executive or ministerial power or function may be
delegated. On the other hand, a legislative, judicial or quasi-judicial power cannot be sub-
delegated as was held in A.G. Bendel State v. A.G. Federation & 22 Ors.

Ultra Vires for Unreasonableness: Where a power is legislative in nature, an exercise of it may
not be set aside on the ground of being unreasonable, arbitrary, draconian or ultra vires except
for instance it breaches the constitution or other statute. However, where a power is
administrative or executive, it will be set aside as ultra vires on the ground of unreasonableness,
arbitrariness, mala fide etc. as was held in Altry v. Farrel.

Privileged Notice: Unless there is an express statutory provision to the contrary, evidence given
before an administrative proceeding is not covered by the common law rule of absolute privilege
which is available in the regular court proceedings, subject of course to the law of perjury as was
held in Collins v. Henry Whiteway and Co.
January 1, 2017

In conclusion, the above discussed classes of administrative powers have been so

classified for convenience and have thus been subject to criticisms by jurists, lawyers and legal
writers alike. Also, every class has its legal significance as it confers rights and obligations on
the administrative authority and citizens or aggrieved party.

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 FIRST SEMESTER, 2015/2016 SESSION

PUL 202: ADMINISTRATIVE LAW1

1. The theory of administrative law is an English law idea that has no application in Nigeria.
Discuss.

2. Patience and Iyadun are law students that are on internship in the Chambers of the Attorney
General of the Federation, engaged in law reform and review pertaining to the powers of MDAs.
Iyadun proposed that they examine and classify the administrative powers exercisable by the
MDAs in their enabling laws. Patience countered that there is no need for such classification as
administrative powers are simply not constitutional powers and there is no legal significance
derivable from such classification. Examine their arguments with the aid of decided cases, if any.

3. Section 30 of Kwara State University Law 2013 empowers the Council of the University
(established under section 10 of the Law) to make regulations prescribing, inter alia, the fees
chargeable to students and for proper and general administration and discipline of the University.
The section adds: “When approved by the Visitor (Governor), the regulations shall be published
in the State Gazette.”

Discuss the validity of the following actions:

(i) The Secretary to the Council caused to be published in the gazette, the regulations made by
the Council that were yet to be approved, because the visitor travelled to Britain on vacation.

(ii) The Visitor approved the regulations but the Secretary to the Council forgot to send the text
to the Government Printer.

(iii) Suppose the Council was required by law to consult the students and their parents, and it
sent out an ordinary letter to the President of the Student‟s Union. Would it make any difference
January 1, 2017

if, the Council had invited five healthy parents and only three turned up?

(iv) The Council delegated its disciplinary powers to Director of Students Affairs.

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4. The practice of delegating legislative powers to Administrative Officers is inevitable, the most
important thing is to check the exercise of such powers. Discuss with reference to judicial control
of delegated legislation.

5. Tom Jones, the Governor of Kogi State of Nigeria intends to take the following actions in
respect of Local Government Councils in the state:

(i) Dissolve all Local Government Councils in the State and appoint caretaker committees in
their place.

(ii) Award contracts on behalf of the Local Government Councils for the construction of
hospitals and schools in all the Local Government Councils. He intends to pay the contractors
from the allocation to the Local Government Councils‟

(iii) Present a bill to the House of Assembly to make laws for the state on elections into Local
Government Councils.

(iv) Present a bill to the House of Assembly to make laws for the state on Adjustment of Local
Government Councils.

Discuss the propriety or otherwise of the intended actions of the Governor.

6. “The Code of conduct in the Fifth Schedule to the Constitution is, in its essential character,
simply a body of rules designed to regulate the civil, not criminal behavior of public officers,
much in the fashion of the Civil Service Rules” – Prof. Ben Nwabueze on matters arising from
the Supreme Court Judgment in the Saraki case.

Do you agree or disagree with this statement? Discuss.

ANSWERS
January 1, 2017

1. Theories of Administrative Law

Administrative Law is the Law that regulates the powers and duties of government and
administrative authorities, and provides remedies for mal-administration and other administrative
wrongs. The main focus of administrative law is the administrative organ of the government
which is the executive.

92
The primary function of administrative law is to establish the conceptual and jurisprudential
foundation for identifying the body of laws that come under the rubric of administrative law.
This seeks to answer the questions; “What is administrative law?” “What is governmental
power?” “What is a State?” And even, “What is Law?” a lot of these questions are resolved by
theory in the area of political science which is taken for granted by Law.

When we focus on government from the administrative law point of view, the primary concern
of administrative law is how governmental powers originate and how law is administered. The
origin of governmental powers is traceable to constitutional law. however, the main objective of
administrative law is to be able to identify the organ of government that is concerned with the
administration or implementation of the law and the structure and mechanism for the
implementation of the law within a given state. Thus, we talk about enabling law that is, the law
upon which the executive administers. It also focuses on the source of the authority for the
structure of the government. It further looks at the procedure by which powers are being
exercised by the executive.

The second theory focus involves the theory of concentration on the principles and rules for the
process for the interaction and decisions of the administration as they affect the citizens as
individuals, groups, units within the different tiers of government and some of those principles
are borrowed from other areas of law. The role of law in the modern state is evidently a complex
one. Therefore, it will be helpful to recognize how current legal thought and practice can be seen
to crystalize around two contrasting models, labeled by Harlow and Rawlings as “red light” and
“green light” perspective, the former more conservative and control oriented the latter more
liberal/socialist in orientation and facilitative. They both help to describe what administrative law
is and to act as normative (i.e. moral and political) suppositions about what its role in society
ought to be.

The Red Light view can be seen to originate from a political tradition of nineteenth century
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laissez-faire (minimal state) theory. It embodied a deep rooted suspicion of governmental power
and a desire to minimize the encroachment of the state on the right of individuals. A.V. Dicey
maintained that the concept of legal sovereignty (the ground rule of our constitution) favours the
supremacy of law. Parliaments (the legislature) establishes a framework of general rules in
society and the executive should govern according to these rules; if not the courts can ensure that

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the executive acts within the confines of the laws as enacted. Such a view is closely allied to the
idea of „self-correcting democracy‟ (checks and balances)

All laws, including administrative law, which according to Dicey did not exist separately from
constitutional law, is regarded as an autonomous and coherent discipline, which performs an
important control function (a part of the constitutional system of „checks and balances‟). The rule
of law remains the key concept, ensuring that all public and private bodies, as well as
individuals, only act according to the law as seen in Military Governor of Lagos State v. Federal
Military Governor Ojukwu. This case confirms the rule of law even in a military government. At
its most basic level, then, what has been termed the Diceyan view, which is still influential in
many judicial and academic circles today, sanctions judicial intervention when and only when,
public bodies (or any other body or individual) exceed their legal power (i.e. act ultra vires or
abuse their power); this assumption being that the bureaucratic and executive power of state
institutions or mechanisms, if unchecked, threatens the liberty of us all.

For red light adherents the judiciary is regarded as being autonomous and impartial, it is imbued
with its own standards of independence and fairness, and can be relied upon as a kind of referee
to adjudicate not on the political or even the practical validity of any decision, but simply on the
legality of executive action. The main function of the judiciary is perceived as interpreting and
applying the strict letter of the law. However, today even those lawyers and academics holding a
broadly red light perspective would not accept Dicey’s view in its purest form, i.e. that the
liberty of the citizen is threatened by an evolving system of administrative law conterminously
with the conferment of certain special powers on ministers and officials. They view the danger in
Dicey’s view as being that ministers and officials might tend to shelter behind a body of rules
and delegated powers which have been created to facilitate the tasks of administration. Thus it is
that, in a negative sense, judicial intervention becomes possible as a kind of safety net, by taking
up the democratic slack in those areas where parliamentary control is manifestly found wanting.
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Red light assumptions can be identified in decisions displaying a natural resistance to executive
discretion, whenever or wherever this appears to fall outside the law as enacted by the
legislature. In summary, the red light theory relates to the provision of security and policing for
the safety of the citizen by the government as well as the check on the powers of the government
by the judiciary. One of the defects of the red light theory is that while law is considered as

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having an essentially adjudicative and control function, there is an obvious reluctance to deal
directly with questions of policy and merits (change), the result of this reluctance to accept the
need for change has been a lack of response to the growing evidence of abuse of executive power
in both central and local government.

The Green Light Theory starts from the standpoint of a more positive social democratic view of
the state, one which impliedly introduces a political and sociological context into law. It is a
position which in essence derives from the utilitarian tradition (usually associated with Bentham
nad Mill and the Fabian Society founded in 1884), the moral imperative being to promote the
greatest good for the greatest number, in this case by egalitarian (equality of right) and
ameliorative (better) social reform. A priority in achieving this objective is to encourage the
contribution of the state, regarded as an effective means of facilitating the delivery of
communitarian goals. It does this by assuming responsibility for at least basic minimum
standards of provision, including housing, education, social security and local services.

The Green Light Theory, therefore, relates to the expansion of powers beyond security and
policing to social welfare. The expansion of the state has given rise to the centralization of
powers in some areas, e.g. central government, the civil service, agencies and quasi-
governmental bodies; and the broad territorial diffusion of power in others, e.g. the emergence of
local government as an important focus of decision taking and spending in the 19th and 20th
century. In summary, power that is exercised by public bodies has greatly expanded;
accordingly, the mechanisms for accountability have assumed a new importance, particularly
since the 1960s. the liberal and socialist theorists coming from the green light stable, e.g.
Jennings, Griffiths, Robson and Laski, have broadly supported the introduction of policies
aiming to develop public service provision. It has been an equally important objective to
establish organized institutions which are properly accountable but at the same time capable of
delivering these services effectively. For instance in Nigeria, the Nigerian Telecommunication
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Service (NITEL), the Nigerian Postal Service (NIPOST), among others were established as
public services to cater for the telecommunication interest of the people. The green light
perspective concentrates more on effectiveness as opposed to a pragmatic one which the red light
adherents hold. Administrative Law, therefore, becomes accepted as part of the total apparatus of
government, not something largely distinct from it. It can be made to act as a regulator and

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facilitator to enable social policy to be implemented effectively and fairly.

Lastly, it will be clear that the green light position has historically been based on the assumption
that large scale government is a permanent feature of modern society. But the truth of this is
questioned. In recent decades, there has been a fundamental challenge to this assumption, with a
widespread tendency towards promoting agency status for some central government functions
through the „Next Steps‟ initiative and by the privatization of many services that were once in the
public sector. The Green Light Theory was practiced extensively in Great Britain and has also
been practiced in Nigeria most especially during the military administration.

The third theory of administrative law goes beyond the exercise of powers and the limitation of
the exercise of powers of the administrative bodies but rather incorporate the reality of modern
government and the demands of limiting the exercise of power against the balance of fulfilling
governmental aspirations and meeting the needs of the people i.e. balancing the exercise of
governmental powers against fulfilling governmental goals in modern times without necessarily
getting into private areas of activities. Consequently, the third theory of administrative law
postulates that governmental power must mainly be exercised to regulate and set out the legal
framework for human activities.

Employing the red and green light theory framework, the third theory would be the AMBER
THEORY with the effect that the welfarist approach under the green light theory is yielding
ground to a commercialized, privatized and regulatory functions of the government. In Nigeria
for instance, public utilities, public corporations, and other public institutions have witnessed
commercialization and in some instances privatization. Indeed, the Bureau of Public Enterprises
(BPE) has supervised the privatization of such entity as the Federal Palace Hotel (which was the
first to be privatized), Nigerian Telecommunication (NITEL), National Insurance Corporation of
Nigeria (NICON) which was privatized and renamed TRANSCORP, Nigeria Electric Power
Authority to Power Holding Company of Nigeria (PHCN), among others. Indeed, government
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has embarked on massive digression of its interest in corporate bodies where it held majority
interest. For instance, the Nigerian Airways used to be under the Federal Government control but
due to the shift to amber theory it has now been privatized.

The focus for the exercise of governmental powers under the third theory is regulation i.e.

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government is to perform the function of a regulatory body and set the ground rules for the
performance of such services or industry in which hitherto, the government was the main player.
For example, in telecommunication, the main service provider was NITEL subsequent to
commercialization and privatization government now functions as the regulator of the industry
through the Nigeria Communications Commission (NCC) and now we have private service
providers such as ETISALAT, AIRTEL, VISAFONE, MTN, STARCOMMS, MULTILINKS,
GLO etc.

Another industry that demonstrates the shift of governmental powers following this third theory
is the banking industry. Government used to be a major player owing shares and deposits in the
banks thereby becoming shareholders but with the privatization of the banking industry,
government is a mere regulatory body. Examples are CBN, FBIC, AMCON, etc.

The fourth theory of administrative law focuses on the moral content of law and the provision of
remedies or the remediation for violation, that is, if power is exercised it must be with the moral
content of justice, accountability, good governance and the human rights of the citizens. The
need to have the moral content in the exercise of administrative powers has resulted in the
enactment of several anti-corruption legislations such as ICPC Act 2000, EFCC Act (2004) and
most recently the Public Procurement Act 2007 (Act No. 14 0f 2007). Indeed, the need for the
intersection of law and morality in administrative law is driven by the idea of justice in the
exercise of administrative powers and this requires the imposition of rules of accountability and
transparency. A good example is the exercise of investigation powers by the legislature as
provided in Section 88 of the 1999 constitution as part of the legal framework to ensure
accountability and transparency, the Freedom of Information Act (2011) was enacted and its
advocate was Abike Dabiri.

Lastly, in relation to the remediation for violation, which can be expressed in the latin maxim ubi
jus ibi remedium which means „where there is a right there must be a remedy,‟ in the area of
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administrative law, several public remedies have been adopted in order to remedy instances of
abuse of powers and of violation of the rights of citizens. Such public law remedies include
mandamus, certiorari, prohibition and habeas corpus. Equitable remedies include declaration
judgement and injunction. Private remedies include damages. Constitutional Law procedure of
Fundamental Right (Enforcement Procedure) Rule made pursuant to Section 46 of the 1999

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Constitution.

2. Nature and Classification of Administrative Power

Administrative Powers are the powers exercised by the executive arm of government in carrying
out its functions of overseeing and directing the day to day implementation of the laws governing
a body or unit of people. These powers function to direct, execute, rule and manage the
objectives of any unit of people. Administrative Powers are policy-making and decision taking in
nature.

Administrative Powers were initially classified based on their functions into powers that
performed;

(ix) Economic Functions

(x) Social-Welfare functions

(xi) Institutional Functions

(xii) Pure-Governmental Functions

However, the British Committee on Ministers’ Powers made a bold but not infallible attempt
to classify powers based on their concept in 1932. Thus, it classified administrative powers into;

(xi) Legislative Powers

(xii) Executive Powers

(xiii) Judicial Powers

(xiv) Quasi-Judicial Powers

(xv) Administrative Decision

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i. Legislative Powers: This is also known as the „Rule-Making Powers‟ of the administration. It
refers to the power of the administration to formulate general rules of conduct without reference
to particular cases and usually operating in the future. These Laws usually take the form of Bye-
Laws, Directives, Guidelines and Regulations. They have the same force of law as laws passed

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by the Legislature or Parliament.

ii. Executive Powers: This refers to the performance of particular acts by the administration,
issuing of particular orders and making decisions that apply general rules to specific cases. This
may take the form of executive, ministerial or administrative powers and such powers are
derivable from the constitution, legislative enactments or the rules of the administrative body
itself.

iii. Judicial Powers: This presupposes an existing dispute between two parties and involves the
application of Laws, rules and principles of law to dispute between parties. It involves the
presentation of the case (not necessarily orally) by the parties, ascertainment of any disputed
facts by evidence adduced by the parties often with the assistance of argument on that evidence,
submission of arguments on any disputed question of law and a decision which disposes of the
whole matter by a finding upon disputed facts and an application of the Law of the land to the
facts so found, including, where required, a ruling upon any disputed question of law.

iv. Quasi-Judicial Power: This kind of power is similar to the judicial power but unlike the latter,
it does not include the submission of arguments on any disputed question of law and the passing
of judgments based on such facts and points of law by the decision-making bodies. Judgment in
this case depends entirely on the Minister‟s free choice. Administrative bodies do not venture
into the arena of civil rights and obligations of citizens in the exercise of these powers. Domestic
Administrative bodies exercise this type of power e.g. the senate body of a university.

v. Administrative Decisions: It can also be referred to as administrative action and it is one in

which the authority in question is not required to employ any of the processes familiar in courts
e.g. hearing of arguments, evidence etc. and is one in which the ground in which the authority in
question acts according to his discretion. Such discretionary powers are either pure (without
qualification) or fettered with a duty i.e. the exercise of such powers depend on the performance
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of certain duties.

The above discussed classes of administrative powers carry with it some legal
implications. Each kind of administrative power confers rights and obligations on the
administrative authority and on the aggrieved party. As a general rule, the following rights and
duties attach:

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 m) Right to Fair Hearing and Natural Justice

n) Duty to Give Notice

o) Grant of Prerogative Remedies

p) Delegation of Power and the rule against Sub-Delegation

q) Ultra Vires for Unreasonableness

r) Privileged Evidence.

a. Right to Fair Hearing and Natural Justice: Where an administrative power is judicial or quasi-
judicial, the administrative authority is bound to observe the right to fair hearing and rules of
natural justice as was held in the case of Aiyetan v. NIFOR. The rules of natural justice are
expressed in the maxims; audi alterem partem – hear the other side and nemo judex in causa
sua which means that a person cannot be a judge in his own cause. Also, in the case of Owolabi
v. Perm. Sec. Min. of Education, the court held that the right to fair hearing had been breached
because the respondent did not give the applicants ample opportunity to correct the allegation
that the complainant may have had against them and also because he did not act according to the
principles of natural justice. However, if an administrative power is categorized as legislative,
executive or administrative, the rules of natural justice do not apply as a general rule.

b. Duty to Give Notice: Where an administrative power is legislative or administrative, there is

no requirement to give notice as a general rule, except, a statute provides that notice be given to
persons likely to be affected or that they be consulted as was held in Bates v. Lord Hailsham.
However, where a power is judicial or quasi-judicial then notice must be given to the person to
be affected, otherwise the decision or action thereon, may be set aside for failure to observe the
rules of natural justice.
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c. Grant of Prerogative Remedies: A judicial or quasi-judicial administrative power or act can be

quashed or stopped by a prerogative remedy such as an order of mandamus, prohibition,
certiorari etc. However, where an administrative authority acts in a legislative or executive
capacity, a prerogative order of court such as an order of mandamus and so forth may not as a
general rule lie against it to compel the performance of a public duty as was held in Banjo and

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Ors. v. Abeokuta Urban District Council. In Arzika v. Governor, Northern Region, the
applicant sought for the application of remedies of prohibition and certiorari, the courts held that
the action of the Governor was not a judicial one and therefore the remedies sought were not
available to the applicant.

d. Delegation of Power/The Rule against Sub-Delegation: The general rule is delegatus non
potest delegare which literally translates to; “a delegate has no power to delegate unless he is
otherwise authorized.” However, an executive or ministerial power or function may be
delegated. On the other hand, a legislative, judicial or quasi-judicial power cannot be sub-
delegated as was held in A.G. Bendel State v. A.G. Federation & 22 Ors.

e. Ultra Vires for Unreasonableness: Where a power is legislative in nature, an exercise of it may
not be set aside on the ground of being unreasonable, arbitrary, draconian or ultra vires except
for instance it breaches the constitution or other statute. However, where a power is
administrative or executive, it will be set aside as ultra vires on the ground of unreasonableness,
arbitrariness, mala fide etc. as was held in Altry v. Farrel.

f. Privileged Notice: Unless there is an express statutory provision to the contrary, evidence
given before an administrative proceeding is not covered by the common law rule of absolute
privilege which is available in the regular court proceedings, subject of course to the law of
perjury as was held in Collins v. Henry Whiteway and Co.

In conclusion, the above discussed classes of administrative powers have been so

classified for convenience and have thus been subject to criticisms by jurists, lawyers and legal
writers alike. Also, every class has its legal significance as it confers rights and obligations on
the administrative authority and citizens or aggrieved party.

4. Delegated Legislation and Law Making

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The Law-making power in any democratic setting rightly belongs to the legislature,
parliament or law-making authority. In the case of Nigeria, it is the national assembly made up of
senate and House of Representatives at the federal level and houses of assembly at the state
levels respectively pursuant to the provisions of Section 4 of the 1999 Constitution. However, it
is difficult if not impossible for the supreme law-making body or legislature to make all laws in a

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state, thus, it delegates power to make laws to any person or body of persons since it is not
restricted in any way and as long as it does not delegate improperly and does not go ultra vires its
powers as was held in Doherty v. Balewa. The process of doing this is known as delegated
legislation or subsidiary legislation. Attempts have been made by various jurists and writers to
define this concept.

According to Iluyuomade and Eka, subsidiary or delegated legislation, simply put, is law made
by a delegated authority. To Malemi, it is the law made by an administrative authority, public
authority or agency to whom the constitution or an enabling statute has given power to make
law. Osborn’s Concise Law Dictionary defined it as the Legislation by some persons or body
of persons under statutory authority given to that person or body of persons by statute. Idigbe
JSC in Barclays Bank of Nigeria v. Ashiru defined delegated legislation as a legislation made
by a person or body other than sovereign parliament or the government of the state or Federation
by virtue of powers conferred either by statute or by legislation which is itself made under
statutory power.

The Law which empowers the administrative authority or agency to make laws is the
enabling act or law. The delegated legislation as well as the enabling act or law has the same
force of law as well as life span as was held in Shitta-Bey v. Federal Public Service
Commission. This is so unless the delegated legislation comes in conflict with the enabling
statute or a higher law in the hierarchy of norms. When an administrative authority, public body
or agency does what it has no power to do, such an act will be held to be ultra vires and null and
void as was held in Ifezue v. Mbadugha.

Some reasons have been adduced in favour of the practice of delegated legislation and they are
as follows: firstly, it reduces the parliamentary workload. Parliament does not have all the time
and capacity required to deal with the volume of legislations required by a modern government
or state. By means of delegated legislation, parliament spreads out and shares the function of
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law-making with extra-parliamentary bodies. In this way, parliament lessens its workload and
thereby facilitates, quickens and enhances the law-making process. Delegation of power is
therefore inevitable to ensure efficient and effective law making and governance. Secondly, it
enables experts to legislate on technical matters. Parliament is often required to legislate on
highly technical and specialized matters on which many of its members may lack the requisite

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knowledge that may be required to legislate in detail and with particularity. Thus, in agreement
with this view, the British Committee on Ministers’ Powers in 1932 said: “The truth is that if
parliament were not willing to delegate law making powers, parliament would be unable to pass
the kind and quality of legislation which modern public opinion requires.” It is therefore
expedient to delegate the regulation of such a matter to the administrative body or agency that
has the required expertise, whilst parliament retains the usual legislative control over such
subsidiary legislations which are made pursuant to acts of parliament.

Thirdly, it saves the time of parliament. By means of a delegated legislation, parliament

delegates powers to certain specialized bodies, and public officers to make minor laws, or
detailed technical or expert regulations required to properly administer the parent or primary
laws made by parliament. This saves time and energy parliament would have expended on
subsidiary legislations. Thus, the practice of delegated legislation enables parliament to
concentrate on the making of broad laws in the form of primary or parent statutes. Furthermore,
it saves cost for parliament. The practice of delegated legislation saves the financial cost, human
and material resources and formalities parliament would have expended on the time consuming,
tedious and boring process required to implement primary laws made by parliament.

In addition, it allows for flexibility in administration. Delegated Legislation and delegation of

power to subordinates reduces the burden on the superiors and allows for flexibility, adaptability
and quick response which is required to deal with administrative problems of ruling human
beings who are not mechanical and robotic creatures. An administrative authority or agency
which deals directly with the people is in a better position to make rules and regulations tailored
to meet contingencies and unforeseen circumstances that may arise from time to time, from day
to day or even on the spot. Again, it enables quick response to a state of emergency: The
delegation of power and delegated legislation are necessary in times of emergency as parliament
may not be able to sit and deliberate with the slow or cumbersome parliamentary procedures of
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debates to be responsive to situations at hand as they unfold. Urgent decisions are needed in such
urgent situations and they are better made by an administrative person or authority. It is therefore
necessary and in the interest of justice to equip the executive or administrative authorities with
the necessary delegated powers by requisite provisions in the constitution and an Emergency
Powers Act under which the administration may take measured and temporary steps as may be

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necessary. Delegation of powers and delegated legislation enables government respond to
emergencies, implement emergency measures, or prosecute war, as the case may be. In
Adegbenro v. A.G. Federation and Ors., the Supreme Court held that a restriction order made by
the administrator of western region of Nigeria was invalid.

The practice of delegated legislation also comes with its shortcomings and defects and
they include but are not limited to:

a) It is contrary to the doctrine of separation of powers: It is believed and argued by some that
delegated legislation is an exception to the doctrine of separation of powers and that it is
unacceptable that persons other than parliament should make law. It is mot proper that people
who are not elected should be allowed to make laws. It is desirable that the laws be made by
parliament i.e. the elected representatives of the people who can be called to account or
sanctioned by defeat at an election for enacting an unfavorable law. Delegated legislation is
contrary to the doctrine of separation of powers and it is a usurpation of the powers of
parliament.

b) It reduces the supremacy of parliament: Delegated legislation is a usurpation of the law-

making powers of parliament and it amounts to a reduction of the supremacy of parliament to
make laws as was held in A.G. Bendel State v. A.G. Federation and 22 Ors.

c) It is undemocratic and prone to abuse: It is undemocratic for persons who are not elected as
parliamentarians and therefore lacking legislative mandate to make laws. Administrative law
makers do not have parliamentary experience and are likely to abuse delegated legislation as was
held in Akingbade v. LTC.

d) It is a violation of the Rule of Law: The making of delegated legislation by administrative

authorities without the observance of the usual law-making procedures is a fundamental defect,
and a violation of the rule of law as was held in Liversidge v. Anderson.
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e) It encourages arbitrariness and dictatorship: The possession of the power to make the law
more often than not makes the executive or administrative authority too powerful, bold, over
confident, insolent, arrogant, and more likely to be arbitrary and dictatorial in his disposition and
action as was held in Williams v. Majekodunmi.

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f) There is a total lack of or insufficient consultation: Commonly, there is total lack of or
insufficient consultation of stakeholders before delegated legislations are made. Furthermore,
there is no general provision of law for the consultation of concerned interests before the relevant
subordinate authority to whom power has been delegated should go ahead to make the delegated
legislation. The court confirmed this principle in AHFIT Board v. Aylesbury Mushroom Ltd.

In conclusion, delegated legislation refers to rules made by administrative authorities who

have been conferred with law-making powers and this practice has its advantages as well as its
disadvantages as discussed above.

6. In order to ensure the efficacy of Public Officers in governance as well as transparency and
accountability in the performance of their functions, the Code of Conduct was designed. The
Code of Conduct Bureau and Tribunal Act is an Act to provide for the establishment of the
Code of Conduct Bureau and Tribunal to deal with complaints of corruption by public servants
for breaches of its provisions. Section 1(1) of the Act provides for the establishment of the Code
of Conduct Bureau. Section 1(2) provides that the Bureau shall consist of a chairman and ten
other members who shall be persons of unimpeachable integrity in the Nigerian Society and who
at the time of their appointment are not less than 50 years. Section 20 of the Act establishes the
tribunal. Section 3 provides that the Chairman and the other members shall be appointed by the
President of Nigeria.

The Code of Conduct Bureau is a legal institutional framework established by the 1999
constitution to help combat corruption in the country. The Economic and Financial Crimes
Commission (EFCC) was also established by the EFCC Act 2004. The difference between the
Code of Conduct and the EFCC is that the code of conduct is mainly for fighting corruption
amongst government officials.

Section 98 of the Criminal Law of Lagos State has to do with bribery among or
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between public officials. Bribery is a criminal offence. Public morality will be defined
differently in various societies and the constitution and the Code of Conduct Bureau did not
define the term “public morality.”

Section 2 of the Code of Conduct Bureau Act, states that the bureau and tribunal was
established to eradicate corruption. It also states that the aims and objectives of the Bureau shall

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be to establish and maintain a high standard of morality in the conduct of government business
and to ensure that the actions and behavior of public officers conform to the highest standards of
public morality and accountability.

Section 3 of the Act, provides that the functions of the Code of Conduct Bureau shall be to;

(m) Receive assets declarations by public officers in accordance with the provisions of the
Act

(n) Examine the assets declarations and ensure that they comply with the requirements of
the Act and of any law for the time being in force

(o) Take and retain custody of such assets declarations, and

(p) Receive complaints about non-compliance with, or breach of the Act and where the
Bureau considers it necessary to do so, refer such complaints to the Code of Conduct
Tribunal established by Section 20 of this Act and doing so in accordance with the
provisions of Sections 20 to 25 of the Act.

Provided that where the person concerned makes a written admission of such breach or of non-
compliance, no reference to the Tribunal shall be necessary.

Section 5 of the Act and the Fifth Schedule of the 1999 Constitution of the Federal
Republic of Nigeria provides for the Code of Conduct for Public Officers. The former provides
that a public officer shall not put himself in a position which will conflict with his personal
interest and his duties.

Part 1, Section 19 of the Fifth Schedule provides that a Public officer is anyone mentioned in
Part II of the Schedule.

Sections 2-13 of Part 1, of the Fifth Schedule provides those instances when a public officer‟s
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personal interest is in conflict with his duties.

Section 23(1) of the Act gives power to the tribunal to punish offenders, where the Tribunal
finds a public officer guilty of contravening any of the provisions of the Act, it shall impose any
of the punishments specifies under Section 23(2) of the Act.

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 Some problems of the Code of Conduct has hindered the progress of this body in Nigeria.

- Bribery and Corruption stands out among the problems of this body that was designed
to fight this same societal evil. Thus, it has become a case of the hunted hunting the
hunter. This has constituted a clog in the wheels of progress of this body as members
who were employed to fight this evil cannot do so efficiently because of their
involvement in the act.
- Abuse of Power on the part of members of the Bureau also constitutes a major
problem to the Code of Conduct and therefore affects its efficiency.
- The Bureau also suffers from gross mismanagement of funds and finances and this in
turn results in inefficiency in the use of productive capital.
- The Lack of Purposeful Leadership and clear-cut goals or targets affects the efficacy
of the Bureau and results in substandard provision of services.

The Code of Conduct Bureau and Tribunal is full of potential and prospects and if well managed
would help the Government in effectively battling the nationwide problem of Bribery and
Corruption at all levels of National life that is prevalent amongst public officials.

It would also help to instill moral values in public officers and help maintain a high standard of
public morality among them.

In conclusion, the Code of Conduct has been designed and established to help combat the
problem of corruption in the country and the implementation, problems and prospects are as
highlighted and discussed above.

5. i) The first issue arising for legal determination is whether or not the Governor can
constitutional dissolve all Local Government Councils in the State and appoint caretaker
committees in their place.
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Section 7(1) of the 1999 Constitution guarantees the establishment of democratically elected
governments. Their establishment, structure and compositions, finance and functions are to be
promulgated upon by the State Houses of Assembly which also has the authority to repeal or
amend such laws when the need arises. However, the number of minimum number of local
governments in each state has been pre-determined by the constitution in the first schedule.

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In Akan v. Attorney General Cross Rivers State, the governor of the then Cross River State
purported to act under the authority of the law passed by the state house of assembly named the
Dissolution of Local Government Councils Law No. 4 of 1979, and dissolved all the local
government councils in the state and proceeded to appoint caretaker committees in their place.
The plaintiff‟s challenged the act of the governor in the high court and it was contended for the
defendant‟s that the law was a valid law. Esin J. of the Cross River State High Court held that
the law was in conflict with and violated Section 7(1) of the 1979 Constitution which is in pari
materia with the 1999 Constitution. In Akinpelu & Ors v. A.G. Oyo State, the learned trial judge
in his judgment stated, „A fortiori, the setting up of a Caretaker Committee, to replace a
democratically elected Council is clearly unconstitutional, illegal and ultra vires the powers of
the 2nd respondent.

In Etim Akpan & Ors v. Hon Peter Umah & Ors, on 3rd of April, 2000, eight out of the ten
councilors in Ini Local Government Council passed a vote of no confidence on the Chairman of
the Local Government Council passed a vote of no confidence on the chairman of the local
government council. As a result of the vote of no confidence there was a deadlock in the
administration of the local government council. The state house of assembly then stepped in and
set up an ad hoc committee to look into the crises in the local government council. The
committee, after executing its assignment, submitted its report to the house of assembly, which
considered the report and recommended to the governor of Akwa Ibom state the immediate
dissolution of the local government council. The governor who is the 1st defendant/2nd
respondent accepted the recommendation and on the 13th of July 2000, by a press release dated
12th July, 2000, the Governor dissolved Ini Local Government Council and set up a caretaker
committee consisting of the appellants who were the 3rd to 7th defendants in the high court of
Akwa Ibom State. Consequently upon the dissolution, the plaintiff/respondent lost his office as
the vice chairman of the council and thereupon instituted an action by way of originating
summons in the high court. By originating summons, the plaintiff now 1st respondent sought
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against all the defendants for the determination of the question of the competence of the
dissolution, and setting up of the caretaker committee under the provisions of Section 7 of the
1999 Constitution. The learned trial judge, Ntem Isua J., granted all the reliefs sought in the
originating summons. Dissatisfied with the judgment, the 3rd to 7th defendants who were
members of the Caretaker Committee as the appellants appealed to the court of appeal and

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sought clarification as to whether the state house of assembly cannot make a law to regulate a
local government council plagued with crises; whether the governor of Akwa Ibom state was not
competent to dissolve the democratically elected Ini Local Government Council constitutionally
guaranteed under Section 7 of the 1999 Constitution and replace it with the appellants as
caretaker committee members. In application of the above rules, the act of the Governor in
dissolving the Local Government Council and setting up in its place a caretaker committee is
unconstitutional and null and void.
In conclusion, the Governor is advised to reinstate the Local Government Councils
immediately as he has acted ultra vires his powers.

(ii) Award contracts on behalf of the Local Government Councils for the construction of
hospitals and schools in all the Local Government Councils. He intends to pay the contractors
from the allocation to the Local Government Councils‟

Section 162(3) provides that local government can benefit from the Federation account. Section
162(5) provides that money due to the local government will be paid to the state. Section 162(6)
states that the states must maintain a joint account with the local government council for the
purpose of disbursement. In A.G. Lagos v. A.G. Federation, the Federal Government refused the
allocation of funds to the local government councils created in Lagos state and the latter state
government challenged the action of the former in court. It was held that they were entitled to do
so as the constitutional procedure for the creation of local governments had not been complied
with by the court.

(iii) Present a bill to the House of Assembly to make laws for the state on elections into Local
Government Councils.

Section 7(1) of the 1999 Constitution guarantees the establishment of democratically elected
local governments. Their establishment, structure and compositions, finance and functions are to
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be promulgated upon by the State Houses of Assembly which also has the authority to repeal or
amend such laws when the need arises. However, the number of minimum number of local
governments in each state has been pre-determined by the constitution in the first schedule.
Item 22 of the exclusive legislative list removes the control of local government election from
the hands of the National Assembly. However, Item 11 of the concurrent legislative list provides

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for the power of them National Assembly to make laws with respect to the registration of voters
and the procedure regulating elections to a local government council. Item 12 of the same list
however states that nothing from the foregoing shall preclude a House of Assembly from making
laws with respect to election to a local government council in addition to but not inconsistent
with any law made by the National Assembly.

Thus, provided the proposed bill is not inconsistent with any existing bill of the National
Assembly with regards to the registration of voters and the procedure regulating elections to a
local government council, the House of Assembly can make valid laws in respect of the
elections.

(iv) The issue arising for legal determination is to ascertain the validity of the bill presented to
the House of Assembly on adjustment of Local Government Councils in the State by the
Governor.

Section 8(4) provides for the procedure, means or steps to be followed before there can
be boundary adjustment for any existing local government area by the House of Assembly.
Subsection 4(a) provides that such request for boundary adjustment must be supported by two-
third majority of members (representing the area demanding and the area affected by the
boundary adjustment) i.e. the House of Assembly and the Local Government in respect of the
area and received by the House of Assembly. Such proposal by virtue of section 4(b) should be
approved by a simple majority of members of the House of Assembly in respect of the area
concerned.
Thus, except the provisions of the sections are complied with, any attempt to adjust the
boundary of the Local Government is unconstitutional.

In conclusion, the attempt to adjust the boundary of the local government through the bill
presented by the Governor to the House is unconstitutional and invalid.
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 UNIVERSITY OF LAGOS

FACULTY OF LAW

LL.B DEGREE EXAMINATION

FIRST SEMESTER 2015/2016

JIL 201: NIGERIAN LEGAL SYSTEM

Time Allowed: 2 hours 30 mins.

INSTRUCTION: ATTEMPT ANY FOUR QUESTIONS

1. In order to explain a legal system, one needs not only to identify the common features of legal
rules, but also the relationships between the rules that together form a system of law. Discuss in
the light of any approach to the definition of law or a legal system that you know.

2. Conflicting decisions of the apex court have done a great harm to the operation of the doctrine
of stare decisis in this country. Contribute to the debate on how (a) the Supreme Court and (b)
the Court of Appeal should treat conflicting decisions of the Supreme Court.

3. There are several ways laws can be classified. Identify and discuss fully any three of such
ways. OR

Discuss any two developments in the last two decades on the controversies surrounding the
reception of English law.

4. Discuss each of the following as sources of law in Nigeria

(a) Ethnic Customary Law

(b) Islamic Law

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(c) International Law

5. Nigerian Legislation are a variety in terms of composition, coverage, applicability, the law
giver and implications. Critically examine this statement.

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6. “The Courts approach the question of interpretation in terms of the application of certain
canons of interpretation and presumptions.” Examine the reality of this statement illustrating
your answers with relevant authorities

OR

The Resolution of Conflict between laws of Nigeria depends on the conflict situations which
usually come up for determination by courts in Nigeria. Discuss the applicable rules in each of
the given situation.

ANSWERS

1. Relationship Between Law and the Legal System

There is no all-encompassing definition of law. This is as a result of the divergence of

opinion in determining “what is law” amongst jurists thus the assertion that two lawyers three
opinions. However, law can be defined as a body of rules which govern human conduct and is
backed by sanction. It is normative in nature i.e. it prescribes how people ought to behave.
According to Blackstone, law is a rule of civil conduct prescribed by the supreme power in a
state commanding what is right and prohibiting what is wrong. To Austin, the law proceeds from
an uncommanded commander who monopolizes use of force to command obedience.

A system means an ordered set of ideas, theories or principles interacting within a given
framework or the organized relationship between the component parts of a body. Thus we can
speak of a legal system as comprising a legal order of normative rules. Accordingly, C.O.
Okonkwo describes the Nigerian legal system as consisting of the totality of the laws or legal
rules and the legal machinery which obtain within Nigeria as a sovereign and independent
African country. Nigerian Legal System refers to the inter-relationship between the different
laws that exist within the Nigerian legal system to achieve an organized and hierarchical frame
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work. For there to be a viable legal system within a defined area, there must be in place "certain
ultimate principles from which all others are derived, nut which are themselves self-existent".
That foundation for all the rules in a normative system has been variously described as the
grundnorm, the ultimate rule of recognition or the basic norm. As the fundamental norm, the
grundnorm establishes and validates the component institutions and legal principles in a legal

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system, its ultimate legal authority depending on the political framework of that society. This
ultimate norm derives its authority from extra-legal sources and once it is established within a
particular legal order it may not be compromised. It is the highest norm in a hierarchy of norms
beyond which there must be no further inquiry. A set of legal norms is therefore said to form a
system when "they form a (more or less) cohesive whole which is (to a certain extent) consistent
in its application and further, that there are relations between these norms such as that some of
them are superior in rank to others or that some derive their validity from others. With the
attainment of independence and the introduction of the Republican constitution in 1963, the
constitution has become the grundnorm for laws in Nigeria. Section 1 of the 1999 constitution
which is similar to most of our previous constitution provides:

(1) This Constitution is supreme and its provisions shall have binding force on all
authorities and persons throughout the Federal Republic of Nigeria.

(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 its inconsistency be VOID.
The supremacy clause has become a common feature of all subsequent constitution. If each
independent political entity were capable of having separate legal system, then one would
expect to see as many systems of law in the world as there are independent political societies.
Some societies do have more than one set of operative laws within their legal systems e.g.
Canon law, Hindu law, Jewish law and Muslim law. A legal system may be defined in this
wider sense as an ordered set of laws sharing unique but common characteristics.

Features of common law legal system:

Like many other African countries that were under British rule, Nigeria is classified
under the common law system. The following may be identified as the characteristic feature of
Nigerian legal system:
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i) Duality: Due largely to the colonial influence during its formative years and the subsequent
imposition of English law, Nigerian legal system has acquired a dual structure comprising
customary and English laws. Aside from the substantive differences in the rule of customary and
English law, especially in the areas of personal law, the former is subject to the provisions of the
latter. Judges are presumed to know the rules of English law and statutes and, therefore, these

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rules do not require proof before them. On the other hand, rules of customary law are treated
with less dignity and have to be proved as facts until they become sufficiently notorious to be
judicially noticed.

ii) Volume of External Influence: Nigerian law has borrowed heavily from diverse external
sources beginning with the influence of Islamic law in Northern Nigeria as a bye-product of the
19th century Fulani Jihad. Islamic law has today supplanted the indigenous customary laws of
many communities in that part of the country following the acceptance of the Islamic faith.
English law remains a major source of Nigerian law. Even local attempts to reshape and reform
the latter usually ends up following the English pattern or deliberately made room for the
importation of English rules and practice and procedure where adequate provision did not exist
in local statutes. Most of our statutes are modeled after English statutes. For instance, the
Criminal code and the Matrimonial Causes Act are modeled after those of Queensland in
Australia while the Penal code, applicable in the North, is fashioned after the Sudanese Penal
Code.

iii) Diversity: Closely linked with the above two characteristics is the geo-cultural diversity that
is so much a part of the Nigerian legal system. This diversity can easily be traced to the
heterogeneity of the country's ethnic groupings and cultural units. It is believed that there are
more than 250 ethnic groupings in Nigeria. This situation has further compounded the task of
proving customary law and the attainment of a harmonized Nigerian common law.

iv) System of Precedents: Nigeria has imbibed the tradition of stare decisis, which enjoins that
earlier decisions should be binding authorities for subsequent cases. The court in which the
decision is given may depart from it only in special cases while the courts below it are strictly
bound by that decision. Such lower courts may not veer from the path of precedent even if they
are inclined by reason to do so.
January 1, 2017

v) Order of Judicial Hierarchy: As a prerequisite for the smooth operation of the doctrine of
precedent, Nigeria has a well structured hierarchy in its judicial set-up. Though the state and
federal courts co-exist with their respective jurisdictions there is only one pyramidal line of
judicial authority. The Supreme Court, as the highest court in the land, occupies the apex,
hearing appeals from the Court of Appeal and retaining some measure of original jurisdiction in

114
selected matters. There are other superior courts of record below it comprising the Federal and
State High Courts, The National Industrial Court, Customary Courts of Appeal and Sharia Courts
of Appeal. Below this are inferior courts such as the Magistrate courts, Area courts, Sharia court
and Customary Courts.

vi) Fusion of the Legal Profession: Legal practitioners in Nigeria are trained as barristers and
solicitors within a unified training scheme at the university level and, thereafter, at the Nigerian
Law school. They are then admitted to the bar as solicitors and advocates of the Supreme Court
of Nigeria, combining the duties of both callings. The legal profession in Nigeria is under the
overall control of the Legal Practitioners council.

vii) Accusatorial or Adversary System: Unlike some foreign jurisdictions that operate the
inquisitorial system, the Nigerian legal process is accusatorial or adversary in nature. In the
inquisitorial system, the court is expected to partake directly in the resolution of disputes and the
prosecution of offenders. However, under the accusatorial system, courts are advised to be
detached from the disputants and to maintain a neutral stand as uninterested umpires relying on
the arguments from both sides for their final decisions. Under this, a judge's decision is based on
the balance of probability depending on the strength of the argument of each side. For instance,
because the prosecution is required by law to prove his case beyond all reasonable doubt, an
accused person is presumed innocent until this is done and a judge will offer little or no
assistance to the prosecution in securing the conviction of an accused person. When a Judge is
offering undue help to the other party, the other party can remind the Judge by saying, "His
Lordship is stepping into the arena". In the opinion of the Supreme Court in Ayubo v Aiyeleru, it
is contrary to the expected role of a Judge as an impartial umpire and against the spirit of fair
hearing for him to descend into the arena of conflict or act for any of the parties. He is expected
to hold the balance fairly between the contending parties.

2. Stare decisis and its Operation in Nigeria: It consists of law found in judicial decision.
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According to P.U Umoh, a precedent ordinarily is no more than an earlier happening decision etc
taken as an example or rule for what comes later. According to Lord Wright, Precedents are what
they are because men faced with a problem ask: have we not had this before or something like it?
The practice of following precedents therefore is a natural phenomenon arising from mans desire
to employ the wisdom and experience of the past as a guide in the handling of new problems.

115
Expressed in its simplest term, the doctrine of Judicial Precedent also known as Stare Decisis is
that a decision of a judge once given on a question of law binds both the judge himself and
subsequent judges in a court of lower rank to decide the same question of law. The Latin maxim
stare decisis is fully expressed as Stare Decisis non quieta movare, meaning to stand by a
decision and not to disturb that which is settled, was defined by the Supreme Court in Nepa v
Onah as meaning, stand by your decision and the decision of your predecessors, however wrong
they are and whatever injustice they inflict. The need for certainty and stability when
approaching the court is one of the essence of judicial precedent. What is required in the
application of the doctrine of precedent is that the case under consideration and the one being
urged as an authority for a particular principle or rule of law should agree on legally material
facts even if, as is often the case, not on point if detail. The material facts and the decision of the
earlier court thereupon constitute the ratio decidendi or reason for deciding which forms the
main plank of Judicial precedent. Where there has been a dissenting judgment, it is the decision
of the majority that forms the decision and the ratio decidendi of the court that ought to be
followed. In Agedah v Nkwocha, the Court of Appeal disapproved of the trial court's neglect of
the majority decision to follow the minority opinion in a Supreme Court case. The Ratio
Decidendi represents the reasoning or principle upon which a case is decided after considering
the facts of the case, the issue calling for a decision and the answer to those issues. Obiter
Dictum on the other hand refers to statement made by Judges though not forming part of the
main judgment are passing, incidental or collateral remarks not bearing directly upon the
question before the court as to affect the determination of the cause of action (see Bello v
Udoye).

Operation of the doctrine

The practicability of judicial precedent depends on a proper hierarchical system of courts within
a legal system. By virtue of Section 6 of the 1999 constitution, the hierarchy of courts in Nigeria
January 1, 2017

is established and such courts include:

A. The Supreme Court. E. High court of the State

B. The Court of Appeal F. Sharia court of Appeal of the FCT

C. The Federal High Court G. Sharia court of appeal of a state

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cc. National Industrial Court H. The Customary court of Appeal of the FCT

D. High court of the F.C.T I. A Customary court of Appeal of a state.

By virtue of Section 287 of the 1999 constitution, the doctrine of following decisions of a
superior court on questions of law in a case before a lower court is established.

The Supreme Court: Section 287(1) provides: The decisions of the Supreme Court shall be
enforced in any part of the federation by all authorities, and persons, and by courts with
subordinate jurisdiction to that of the Supreme Court. The Supreme Court, being the final court
of the land by virtue of section 235, unlike other courts is loosely bound by the doctrine of
precedent. While it is obliged to follow its past decisions, on certain conditions, it may depart
from the former decision. Underscoring the philosophical justification for easy departures in
appropriate cases, the Supreme Court in Odi v Osafile reasoned that: "laws are made for man and
not man for laws... Man is fallible, so are the errors of thought and thought processes surface and
are exposed and brought to the attention of its authors, there should be power of jurisdiction to
depart from the errors and thread the correct part - per Obaseki JSC. Oputa JSC in Adegoke
motors v Adesanya, succinctly stated the reason why the Supreme court may depart from its
earlier decision thus: We are not final because we are infallible, we are infallible because we are
final. Justices of the court are human beings capable of erring. It will certainly be short-sighted
arrogance not to accept this obvious truth. This court has the power to overrule itself... for it
gladly accepts that it is far better to admit an error than to persevere in error. In Abdulkarim v
Incar Nigeria ltd, the Supreme Court held that although it will respect its 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. Thus, the Supreme Court can veer from the path of
precedent in special cases including:
January 1, 2017

1. Where the decision was given per incuriam.

2. Where it found to be simply erroneous.

3. Where it is capable of perpetuating injustice.

4. Where it will curtail constitutional right

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5. Where the court is of the opinion that it is nevertheless in the general interest of justice and the
proper development of the law to do so.

Thus, except where the Supreme Court is attempting to overrule its earlier decisions, it would
ordinarily follow them though it is by no means bound by them.

The Court of Appeal: It is the next court in line in the hierarchy. Section 287(1) provides: The
decisions of the Supreme Court shall be enforced in any part of the federation by all authorities,
and persons, and by courts with subordinate jurisdiction to that of the Supreme Court. Thus, the
Court of Appeal as well as all other courts listed under section 6(5) being a court of subordinate
jurisdiction is bound by the decisions of the Supreme Court. Unlike the Supreme Court, the
Court of Appeal is bound by its previous decision. However, it is generally believed that the
Court of Appeal, can depart from its previous decisions according to the rules laid down in the
case of Young v Bristol Aero plane co., at least in civil cases. By this the court may depart from
its previous decision if:

a. it was given per incuriam

b. it has to choose between two or more of its own previous decision and overrule the others

c. though not expressly overruled, it is incompatible with a decision of the Supreme court.

Thus, when a lower court such as the Court of Appeal is faced with a decision that it believes to
have been given per incuriam, it is advised to scrutinize the facts and re-examine the ratio
decidendi. If the facts permit it, it may distinguish the case before it from the one sought to be
applied as precedent. Since it is the facts and circumstances of a given case that determine the
decision in that particular case, the Court of Appeal has held that pronouncement of justices of
the Supreme court or of the Court of Appeal should not be considered in isolation from those
facts. As a general rule, the doctrine makes it mandatory for a lower court to follow the decision
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of a superior court even when it disagrees with the reasoning and conclusion reached there in.
The lower court may, however, find a way out of the clutches of precedent by distinguishing the
case under consideration from the one being urged as binding authority. Distinguishing is the
process by which a court rejects an earlier case as being an authority as either on ground that the
facts of the earlier case are different from the facts of the case at hand or that the decision is too

118
wide considering the issues before the court. It is also a means by which the court points out an
essential difference between the case before it and the earlier one being urged as precedent. In
distinguishing, certain factual differences are found which justify the court not to follow the
earlier case while still accepting that the earlier case is good law. Distinguishing is divided into
restrictive and non-restrictive.

Restrictive distinguishing occurs where the court applying a previous decision limits the
expressed ratio decidendi of the earlier case thereby taking the case under consideration outside
its ambit. This is done where the judge is of the opinion that the rule or principle of law as
formulated by his predecessor was rather too wide given the issues before the court. It is more
common with courts of coordinate jurisdiction since most judges will not readily question the
decision of a superior court.

Non restrictive distinguishing occurs ordinarily where the court, without tampering with the
ratio decidendi of the earlier case, finds that there is significant and material difference in the
fact of both cases rendering the principle in the previous case inapt as authority for deciding the
subsequent one. In other words, the court accepts the ratio decidendi of the earlier case and does
not seek to curtail it, but finds that the case before it does not fall within it because of some
material difference in facts. In Queen v Governor of Eastern Nigeria exparte Warri, counsel
had relied on a Western region case in support of the application for an order of certiorari even
though the law had limited its jurisdiction in chieftaincy matters. The court found that while the
law considered in the western region did not expressly exclude certiorari, the relevant Eastern
regional law did. The facts surrounding both cases were so succinctly divergent as to render the
earlier case impotent as a precedent for the case under consideration. However, the application of
the doctrine of distinguishing is not unfettered. In order not to make a mess of the doctrine of
Precedent, judges choosing to distinguish must back up their opinion rather than make bare
declaration that the facts are different. In the words of Thompson J in Board of Customs &
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Excise v Bolarinwa: It is not sufficient to say that the facts are different. A magistrate who does
not intend to apply a decision of the high court must state:

A. the ratio decidendi of that decision

B. The facts proved in that decision

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C. show by judicial reasoning in the body of the judgment, in what manner the high court
decision is different from the case before him.

The above presumption, which is recommended to all courts serve to curb the incidence
of reckless abandonment of binding precedent under the pretext of distinguishing otherwise the
whole essence of precedent could be defeated.

Therefore, while a judge can apply distinguishing to ensure justice where an earlier decision has
been given per incuriam, this power is not unfettered so as not to defeat the essence of judicial
precedent which seeks uniformity and certainty within a legal system as opposed to an unruly
judicial / legal system.

3. Classification of law: It should be noted that there is no universal or water tight classification
of law as most classification often overlap. Law can therefore be classified into:

(a) Public law and private law (e) Substantive law and adjectival or procedural law

(b) Civil law and criminal law (f) Customary law and non-customary law

(c) Civil law and common law (g) Written law and unwritten law.

(d) Municipal law and international law.

(A) Public Law and Private Law: According to Niki Tobi, Public law is concerned with the
protection of the state. It is concerned with the smooth running of the machinery of the state and,
consequently, caters for cases where the interest of the society is directly involved or the smooth
interaction between governmental agencies and organs of the state is threatened. Branches of
Public law include Constitutional law, Administrative law, Criminal law, International law
amongst others. Private law on the other hand, deals with the relationship between individuals. It
comprises those laws that serve to regulate the conduct of persons in their interpersonal dealings,
January 1, 2017

conferring status, rights and obligations on individuals or juristic persons. It deals with the
protection of individual rights. It includes such diverse areas as the law of contract, property law,
tort, family law and succession, commercial law, equity and trusts amongst others. It should be
noted that a cause of action could arise in both classes of law. For instance, a slap could give rise
to an action in tort for battery [Private law] and crime of assault [Public law]

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(B) Civil Law and Criminal Law: Civil law is concerned with competing private interest and
obligations and abounds mostly in our unwritten or judge made laws. It is often invoked by
private persons although the state or its organs may, in appropriate cases, initiate or defend
actions as juristic persons. The remedy at common law is mostly damages while equitable
remedies include the prerogative remedies of specific injunction amongst others. The party
bringing the action is referred to as the plaintiff (or the petitioner in divorce, election and
winding-up proceedings where actions are commenced by petition while the adverse party is
known as the defendant (or respondent as the case may be). Branches of civil law include
contract, torts, land law and family law. Civil law has as their objectives the recovery of money
and other property or the enforcement of a right or advantage. According to the court in Mellor v
Denham, criminal law is the branch of law which seeks to protect the interest of the public at
large by punishing certain conducts which are believed to be harmful to the society to permit
such conducts to exist or continue. It involves the enforcement of those rules of conduct usually
statutory, the infringement of which will invoke a punishment there under. Punishment is
imposed generally by imprisonment or fine or both. The party instituting a criminal action which
is usually on behalf of the State is the prosecutor (an officer of the ministry of justice) whiles the
party against whom the charges are brought is the accused.

(C) Civil Law and Common Law: Common law refers to the law that has its origin in the
Roman ius civile, having evolved from the commentaries of European scholars on the Justinian
code. The law under this system has always been flexible and persuasive, seeking a well ordered
society through rules that expressed a sense of justice. It gave birth to the natural law school and
with it a more scientific, secular and scholastic approach to the study of law. This system of law
has influenced many jurisdictions in continental Europe, including France, Germany, Spain and
Portugal as well as those countries in which these countries have had political influence in
Africa. Common law on the other hand, describes the law that was developed by the English
courts from the common customs and practices in England. Unlike the civil law system, which
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formulates guiding rules in general terms, the primary concern of common law is the resolution
of particular disputes. It is more concerned with the positive law and often lays more emphasis
on procedural rules than substantive law. Precedents are binding and thereby form a major
source of law in the common law system.

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(D) Municipal Law and International Law: The term Municipal can be used interchangeably
with national, domestic or local and it denotes the internal law of a particular country. It
embodies all the laws of a country that regulate the relationship between the individuals and
between the individual and the state. So, municipal laws are laws emanating from within a
sovereign country and having force of law within its territory. International law on the other
hand, is the law which governs the relationship between states inter se or between states and
international organization. It is the law that binds respective states and regulates their mutual co-
existence and relationship. The sources of international law include international customary
practices, treaties, bilateral agreements and conventions.

(E) Substantive Law and Adjectival or Procedural Law: Substantive law means the rules of
law themselves. It comprises the rules of law and those legal principles that define the existence
and extent of a legal right or liability in a particular branch of law. It is concerned with the
creation, definition and limitation of obligation. Procedural law, as described in Atolagbe v.
Awuni, involves the rules by which an action may be brought and disposed of. It prescribes the
method for enforcement of rights and duties and obtaining redress for wrongful invasion of those
rights as well as the enforcement of obligations or duties.

(F) Customary Law and Non-customary Law: Customary law includes those laws that are
indigenous to the native communities. Customary law is treated as a question of fact that has to
be proved to the satisfaction of the court before it is applied. Furthermore, a rule of customary
law to be valid must pass through the validity tests laid down in the Evidence Act. Non-
customary law is a very wide expression covering the received English law, local statutes and
rules of law derived from judicial precedents. Due to the pre-eminence of local statutes it
overrides all other non-customary and customary law.

(G) Written Law and Unwritten Law: Law may either be written or unwritten. The word
'written' has a technical meaning. It means a rule that has been formally enacted into a legislation
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or statute by the legislature. Written laws are usually found in documents. Written laws are
called by different names in different jurisdiction and at various times. They may be called
codes, statutes acts decrees edicts laws rules or ordinances. Unwritten law means two things.
First, it may mean any principle or rule of behavior that is not written down at all. Secondly it
could mean an un-enacted law even if the principles are reduced into writing as is case law. An

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example of an unwritten law is the British Constitution.

4. i) Customary law: There is no universally accepted definition of customary law. Different

terms such as native law and customs, native law, native customary law, local law have been
used interchangeably to refer to this class of law. C.O Okonkwo describes it as a body of customs
and traditions which regulate the various kinds of relationship between members of the
community in the traditional setting. Elias T.O describes it as a body of customs accepted by
members of a community as binding on them. Niki Tobi describes it as a body of customs, rules
and tradition which governs the relationship of members of a community. Section 49 of the
customary law of Anambra state defined it as a rule or body of rules regulating rights and
imposing correlative duties, being a rule or body of rules which obtain and is fortified by
established usage and which is appropriate and applicable and applicable to any particular cause
matter dispute issue or question. In Oyewunmi Ajagungbade v Ogunsesan, Obaseki JSC.
described it as the organic and living law of an indigenous people of Nigeria regulating their
lives and transaction... As noted by the Supreme Court in Zaiden v Mohosen, it is not a law
enacted by any competent legislature in Nigeria, yet it is one that is enforceable and binding
within Nigeria between the parties subject to its sway.
Characteristics: It is accepted by persons of such community as a law governing transactions
between them. It is unwritten as there is no single document in which customary can be found
rather it is handed down through generations orally. It is diverse as there is no uniform system of
customary law. It is flexible; In Lewis v Bankole, Osborne CJ noted "one striking feature of
West African culture is its flexibility. It is also applicable within a defined territory as noted in
the case of Taiwo v Dosunmu. Thus, a custom applicable in a particular ethnic group in Nigeria
cannot be applied in Ghana. Finally it must be in existence at the material time.

ii) Islamic law: Unlike customary law, Islamic Law is not indigenous to the Nigerian people. Its
history in Nigeria is related to the history of the establishment of Islamic religion in Nigeria, i.e.
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the Jihad of Usman Dan Fodio in 1804. Islamic law, unlike customary law is written and rigid.
The sources of Islamic law are the Holy Koran, the practice of the Prophet Mohammed [Sunna],
the consensus of the scholars [the Ijmas], and analogical conclusions from the Holy Koran [the
Qiyas], the Hadith. Though the Sharia legal system has many varieties, the brand practiced in
Nigeria is the Maliki School and it is almost uniformly practiced in all areas governed by the

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Maliki School, though with some local variations. The difference between the Sharia and
customary law was acknowledged by the Supreme court in Usman v Usman where Bello CJN.
said, definition of customary law in Section 2 of the Customary Court of Appeal law which
means the rules of conduct...as established by custom and usage is incapable of including
Muslim law. Since the decision in Lewis v Bankole... customary law has been stated to be
unwritten customary law recognized as law by members of an ethnic group and it is a mirror of
accepted usage... on the other hand, it is a notorious fact that Muslim law is written in the Holy
Koran, in the numerous books of the Hadith.

6. Rules of statutory Interpretation. The function of law making rests with the legislature and
a lot of resources both human and material as well as time are expended in the course of enacting
a statute. They would have considered all loop holes and sought to resolve any uncertainty in
order to ensure that the law when passed is devoid of ambiguity. But as Lord Denning aptly puts
it "The draftsman conceived certainty and brought forth obscurity even absurdity. The proper
construction to be given to the provisions of a statute is invariably the burden of the courts, a
duty that is discharged through statutory interpretation. Statutory interpretation as defined by
Fitzgerald is the process by which the courts seek to ascertain the meaning of legislations
through the medium of authoritative forms in which it is expressed. Being vested with the power
of adjudication of disputes, the court in the course of discharging this function are called upon to
interpret documents, construe the meaning of statute and determine the liabilities tights duties
and obligations of parties to a suit whether it be civil or criminal. Thus the task of the court can
be said to be an inquest into the intention or reason for the enactment of such statute [sentetia
legis] based on the letter of the statute [litera legis]

This however does not afford them the opportunity to rewrite the statute but that such
interpretation should be within the ambit of the statute. As noted by Bairmain F.J in Okumagba v
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Egbe, the office of the judge is JUS DICERE and not JUS DARE - to state the law and not to
give it. The rules are as follows. Literal rule, Golden rule, Mischief rule, Ejusdem generis rule,
Intrinsic guide and Extrinsic guides.

Literal rule: under this the courts apply the ordinary plain meaning of the statute devoid of
implications. According to Tridal cj in the sussex peerage case, the only rule for the construction

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of acts of parliament is that they should be construed according to the intent of the parliament
which passed the act. If the words of the statute are in themselves precise and unambiguous then
no more ca be necessary then to expound these words in their natural and ordinary sense. The
words themselves alone do in such cases best declare the intention of the law maker. In
Adegbenro v Akintola, the Privy Council in interpreting section 33 of the 1963 constitution of
the western Nigeria which empowered the Governor to remove the premier if it appears to him
that the premier no longer commands the support of the majority of the house of assembly held
that the Governor could reach this conclusion without any limitation as to the material on which
he was to base his judgment. It might even appear to him in a dream. According to Obilade, this
cannon is useful only if using it does not lead to absurdity which the parliament could not have
intended.

Golden Rule: In Okeke v Anambra State, the court aptly states where the application of the
plain grammatical interpretation of a particular provision will produce absurd, inconsistent or
ambiguous results; the court may instead apply the words with a secondary meaning they are
capable of bearing. The expression used in a st5atute may be vague and so faulty that no sense
can be made of it; it may rather lead to outright absurdity if interpreted literally. For instance in R
v Bangaza, the Supreme Court was considering section 319(2) of the Criminal Code prohibiting
the death sentence for any offender who had not attained the age of 17 years found guilty of
murder. The court was of the opinion that the relevant consideration should be the age at the time
of conviction and not at the time of conviction not at the time the offense was committed (the
right age ought to be at the time the offense is committed). It may be repugnant to the law
makers‟ intention to apply the literal meaning of the words of a statute. It is for this realization
that a further development was made to the rule in which the ordinary meaning of words will be
departed from where adopting them will lead to absurdity inconsistency or create anomalous
consequences which the legislature could never have intended. In Becke v Smith, Parke B
observed, "it is a very useful rule in the construction of a statute to adhere to the ordinary
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meaning of the words used and to the grammatical constructions unless that it is art 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. Thus the Golden rule is resorted to when there is a clear and
gross imbalance ad the language of the statute is susceptible to the modifications required to

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obviate the imbalance. The usual implication of the application of this rule is that the words of
the statute are ignored or those not there are read into it. In Re Signsworth, applying this rule, a
son who murdered his mother was disallowed from succeeding to the estate of the deceased as
"the issue" in order to ensure that he did not profit from the crime. Also in R v Eze, the court
readily construed the disjunctive article 'or' immediately before clause (c) in Section 2 of the
Criminal Procedure Act conjunctively as 'and' to make sense of the definition of an indictable
offence. Also in Adamolekun v Council of University of Ibadan, the Supreme Court had to
interpret Section 6 of the Constitution (Suspension and Modification) Decree 1966 which
provided that: "No question as to the validity of this or any other Decree or Edict shall be
entertained by any court of law in Nigeria." Section 3(4) of the same Decree made any edict that
was inconsistent with a decree void to the extent of such inconsistency. An application of the
literal rule would have precluded the court from giving effect to section 3(4) and pronouncing on
the validity of an offending Edict. The court, by applying the golden rule, interpreted section 6
constructively as not barring the court in this instance, and proceeded to declare the Edict void.

Mischief rule: Otherwise known as the rule in Heydons case is used to explain the intention of
the legislature or the purpose for which the law was enacted rather than to alter the expression
used by it. It is a useful tool whenever the meaning of a particular provision is in doubt.
According to Tridal cj 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 mischief which
they intended to redress.

The court in applying the mischief rule should be guided by the following considerations
as laid down in Re May fair property co per Lindley MR

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

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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.

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The court is enjoined to interpret the ambiguous section in such a way as to suppress the
mischief and advance the remedy. It could in the process consider not only the intrinsic aids but
also previous statute and case laws dealing with the subject matter. For instance Lord Pearce and
Wilberforce in Sweet v Parsley relied on the interpretation given to similar words in the
Dangerous Drugs Act 1920 to interpret the expression "concerned in the management of
premises used for the purpose of smoking cannabis" as used in the Dangerous Drugs Act of
1965. Also in Gorris v scott, a statutory order required animals carried on board a ship to be kept
in pens of a specified size. The defendant violated this order in respect of a ship on which the
plaintiffs‟ sheep were being transported, thereby causing the sheep to be washed over board
during a storm. The plaintiff sued the defendant for breach of a statutory duty. Rejecting his
claim, the court noted that the statute was enacted to check the spread of disease and not to
prevent drowning. Since the plaintiff was now seeking to apply the order to a different mischief
outside the intention of the legislature, he could not invoke the remedy sought

Ejusdem Generis: meaning of the same kind or nature, under this rule, where particular words
are followed by general words, the general words are interpreted restrictively to have a meaning
that is of the same kind or genus as the preceding ones already particularized. For instance,
where a statute refers t dogs cats goats and other animals, under this rule other animals would be
interpreted as being animals of the same class i.e. Domestic animals. In Nasr v Bouari was faced
with the question whether premises used partly as living accommodation and partly as a night
club fell within the definition as premises used for other lawful purposes. The court refused to
give the phrase any wider interpretation beyond the particularized kinds of premises and
concluded that it meant premises used for purposes similar to living or sleeping, there by
excluding night clubs. Also 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
Sunday. The classes of people prohibited were trades men, artificers, workmen, labourers or
other persons whatsoever. The court held that the phrase other persons whatsoever should be
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limited to persons of the same genus as those expressly mentioned and could not include farmers
and barbers.

Also, the court can be guided by Noscitur Asociis [the context in interpreting a statute, you have
to consider the words, clauses, sections, provisions used in the context in which these sections

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are used and then interpret them.

Intrinsic Guides: They are assistance that can guide one from within the statute itself. They
include:

- Preamble: This gives the history or reasons behind the particular enactment, a useful guide in
ascertaining the legislature intent and especially in the application of the mischief rule. In Okeke
v Ag Anambra, the court read the preamble to Decree No 13 of 1984 as part of the decree in
order to understand its provision and especially as the preamble was incorporated into the body
of the decree.

- Headings and titles: Headings are useful in the interpretation of ambiguous sections.

- Marginal / Side note

- Explanatory notes

Extrinsic aids: This refers to the assistance that can guide from outside the statute. In Ag Lagos
v Ag Federation over town and country planning matters, the Supreme Court had to consider
whether section 20 of the 1999 constitution (one of the Chapter II provisions on environmental
objectives) read with item 60a of the exclusive legislative list empowering the federal
government to legislate on urban and regional planning in a state as against matters pertaining to
the environment generally. In order to show the intended scope and ambit of section 20, the court
delved into how the section of the constitution got its inspiration having been inserted for the
first time in the 1999 constitution. For this, it referred to the report of the 1994/1995
constitutional conference and the draft constitution contained therein and applied it to the case.
Other extrinsic aids include: Black‟s law dictionary- for the meaning of the words, text book,
Interpretation act, case law, similar statute, rules of court etc.

The task of interpretation of statutes is one that requires the expertise of a specialized
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body such as the Judiciary to achieve the main purpose behind the enactment of the statute.

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 FIRST SEMESTER, 2013/2014 SESSION

JIL 201: NIGERIAN LEGAL SYSTEM

1. (a) Briefly define or describe a legal system.

(b) Hadijatou, your Gambian friend studies law in South Africa. She challages you, during a
chat to educate her, about the common features of both legal systems of Nigeria and the Gambia.
The only thing you know about the Gambia is that it is a former colony of England. Educate her.

2. (a) Discuss the view that in the light of judicial pronouncement, the reception of both the
common law and the doctrine of equity did not imply that Nigerian courts were absolutely bound
to follow any English decision.

(b) Identify and briefly discuss two other ways, apart from general reception, by which
English law can is incorporated into our legal system

3 (a) (i) "The distinction between civil and criminal law lies not in the act or conduct amounting
to the infraction but in the procedure for seeking remedy. Discuss.

(ii) "International Legal order is distinct from municipal legal order, but sometimes, their
sources overlap." Discuss in the context of Nigerian Legal system.

OR

(b) Define or describe the doctrine of Stare decisis and discuss its operation in the Nigerian Legal
system.

4. Customary law is unique in terms of conceptualization, validity and proof of its existence in
the adjudicatory process. Examine this statement with the aid of statutory authority and decided
cases.
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5. (a) "The interpretation powers of the courts constitutes an integral part of the judicial powers
as conferred on the court by the constitution." Critically examine how the court carry out this
function and the tools deployed in ensuring the efficacy of the process.

OR

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(b) "Legislations are a variety with distinct functions depending on the perspective of the law
maker." Discuss.

6. Examine the facts in the case of Olowu V Olowu [19895] 3 N.W.L.R (pt. 13) 372 and discuss
the significance of the case to internal conflict of laws in Nigeria.

ANSWERS

1.(a) Meaning of a Legal System:

A system means an ordered set of ideas, theories or principles interacting within a given
framework or the organized relationship between the component parts of a body. Thus we can
speak of a legal system as comprising a legal order of normative rules. Accordingly, C.O.
Okonkwo describes the Nigerian legal system as consisting of the totality of the laws or legal
rules and the legal machinery which obtain within Nigeria as a sovereign and independent
African country. Nigerian Legal System refers to the inter-relationship between the different
laws that exist within the Nigerian legal system to achieve an organized and hierarchical frame
work. For there to be a viable legal system within a defined area, there must be in place "certain
ultimate principles from which all others are derived, nut which are themselves self-existent".
That foundation for all the rules in a normative system has been variously described as the
grundnorm, the ultimate rule of recognition or the basic norm. As the fundamental norm, the
grundnorm establishes and validates the component institutions and legal principles in a legal
system, its ultimate legal authority depending on the political framework of that society. This
ultimate norm derives its authority from extra-legal sources and once it is established within a
particular legal order it may not be compromised. It is the highest norm in a hierarchy of norms
beyond which there must be no further inquiry. A set of legal norms is therefore said to form a
system when "they form a (more or less) cohesive whole which is (to a certain extent) consistent
in its appl9ication and further, that there are relations between these norms such as that some of
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them are superior in rank to others or that some derive their validity from others. With the
attainment of independence and the introduction of the Republican constitution in 1963, the
constitution has become the grundnorm for laws in Nigeria. Section 1 of the 1999 constitution
which is similar to most of our previous constitution provides:

(1) This Constitution is supreme and its provisions shall have binding force on all

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 authorities and persons throughout the Federal Republic of Nigeria.

(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 its inconsistency be VOID.
The supremacy clause has become a common feature of all subsequent constitution. If each
independent political entity were capable of having separate legal system, then one would
expect to see as many systems of law in the world as there are independent political societies.
Some societies do have more than one set of operative laws within their legal systems e.g.
Canon law, Hindu law, Jewish law and Muslim law. A legal system may be defined in this
wider sense as an ordered set of laws sharing unique but common characteristics.

(b) Features of common law legal system:

Like many other African countries that were under British rule, Nigeria is classified
under the common law system. The following may be identified as the characteristic feature of
Nigerian legal system:

i) Duality: Due largely to the colonial influence during its formative years and the subsequent
imposition of English law, Nigerian legal system has acquired a dual structure comprising
customary and English laws. Aside from the substantive differences in the rule of customary and
English law, especially in the areas of personal law, the former is subject to the provisions of the
latter. Judges are presumed to know the rules of English law and statutes and, therefore, these
rules do not require proof before them. On the other hand, rules of customary law are treated
with less dignity and have to be proved as facts until they become sufficiently notorious to be
judicially noticed.

ii) Volume of External Influence: Nigerian law has borrowed heavily from diverse external
sources beginning with the influence of Islamic law in Northern Nigeria as a bye-product of the
19th century Fulani Jihad. Islamic law has today supplanted the indigenous customary laws of
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many communities in that part of the country following the acceptance of the Islamic faith.
English law remains a major source of Nigerian law. Even local attempts to reshape and reform
the latter usually ends up following the English pattern or deliberately made room for the
importation of English rules and practice and procedure where adequate provision did not exist
in local statutes. Most of our statutes are modeled after English statutes. For instance, the

131
Criminal code and the Matrimonial Causes Act are modeled after those of Queensland in
Australia while the Penal code, applicable in the North, is fashioned after the Sudanese Penal
Code.

iii) Diversity: Closely linked with the above two characteristics is the geo-cultural diversity that
is so much a part of the Nigerian legal system. This diversity can easily be traced to the
heterogeneity of the country's ethnic groupings and cultural units. It is believed that there are
more than 250 ethnic groupings in Nigeria. This situation has further compounded the task of
proving customary law and the attainment of a harmonized Nigerian common law.

iv) System of Precedents: Nigeria has imbibed the tradition of stare decisis, which enjoins that
earlier decisions should be binding authorities for subsequent cases. The court in which the
decision is given may depart from it only in special cases while the courts below it are strictly
bound by that decision. Such lower courts may not veer from the path of precedent even if they
are inclined by reason to do so.

v) Order of Judicial Hierarchy: As a prerequisite for the smooth operation of the doctrine of
precedent, Nigeria has a well structured hierarchy in its judicial set-up. Though the state and
federal courts co-exist with their respective jurisdictions there is only one pyramidal line of
judicial authority. The Supreme Court, as the highest court in the land, occupies the apex,
hearing appeals from the Court of Appeal and retaining some measure of original jurisdiction in
selected matters. There are other superior courts of record below it comprising the Federal and
State High Courts, The National Industrial Court, Customary Courts of Appeal and Sharia Courts
of Appeal. Below this are inferior courts such as the Magistrate courts, Area courts, Sharia court
and Customary Courts.

vi) Fusion of the Legal Profession: Legal practitioners in Nigeria are trained as barristers and
solicitors within a unified training scheme at the university level and, thereafter, at the Nigerian
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Law school. They are then admitted to the bar as solicitors and advocates of the Supreme Court
of Nigeria, combining the duties of both callings. The legal profession in Nigeria is under the
overall control of the Legal Practitioners council.

vii) Accusatorial or Adversary System: Unlike some foreign jurisdictions that operate the
inquisitorial system, the Nigerian legal process is accusatorial or adversary in nature. In the

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inquisitorial system, the court is expected to partake directly in the resolution of disputes and the
prosecution of offenders. However, under the accusatorial system, courts are advised to be
detached from the disputants and to maintain a neutral stand as uninterested umpires relying on
the arguments from both sides for their final decisions. Under this, a judge's decision is based on
the balance of probability depending on the strength of the argument of each side. For instance,
because the prosecution is required by law to prove his case beyond all reasonable doubt, an
accused person is presumed innocent until this is done and a judge will offer little or no
assistance to the prosecution in securing the conviction of an accused person. When a Judge is
offering undue help to the other party, the other party can remind the Judge by saying, "His
Lordship is stepping into the arena". In the opinion of the Supreme Court in Ayubo v Aiyeleru, it
is contrary to the expected role of a Judge as an impartial umpire and against the spirit of fair
hearing for him to descend into the arena of conflict or act for any of the parties. He is expected
to hold the balance fairly between the contending parties.

Advising Hadijatou, the features listed above are features of Common Law systems.
Thus, Nigeria and the Gambia, being former colonies of England operate the common law
system. Thus, the two systems would have the same characteristics in both legal systems,

3. (a) (i) Civil Law and Criminal Law: Civil law is concerned with competing private interest
and obligations and abounds mostly in our unwritten or judge made laws. It is often invoked by
private persons although the state or its organs may, in appropriate cases, initiate or defend
actions as juristic persons. The remedy at common law is mostly damages while equitable
remedies include the prerogative remedies of specific injunction amongst others. The party
bringing the action is referred to as the plaintiff (or the petitioner in divorce, election and
winding-up proceedings where actions are commenced by petition while the adverse party is
known as the defendant (or respondent as the case may be). Branches of civil law include
contract, torts, land law and family law. Civil law has as their objectives the recovery of money
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and other property or the enforcement of a right or advantage. According to the court in Mellor v
Denham, criminal law is the branch of law which seeks to protect the interest of the public at
large by punishing certain conducts which are believed to be harmful to the society to permit
such conducts to exist or continue. It involves the enforcement of those rules of conduct usually
statutory, the infringement of which will invoke a punishment there under. Punishment is

133
imposed generally by imprisonment or fine or both. The party instituting a criminal action which
is usually on behalf of the State is the prosecutor (an officer of the ministry of justice) whiles the
party against whom the charges are brought is the accused.

In conclusion, the distinction lies majorly in the procedure for seeking the remedy
because while civil law is concerned not with punishment of a tort-feasor but grating of remedy
to the person to whom the tort has been committed against, the aim being monetary
compensation for the damage caused. On the other hand, criminal law is concerned with the
punishment of acts prohibited by the Criminal Code and is usually followed by punitive
sanctions.

(ii) Municipal Law and International Law: The term Municipal can be used interchangeably
with national, domestic or local and it denotes the internal law of a particular country. It
embodies all the laws of a country that regulate the relationship between the individuals and
between the individual and the state. So, municipal laws are laws emanating from within a
sovereign country and having force of law within its territory. International law on the other
hand, is the law which governs the relationship between states inter se or between states and
international organization. It is the law that binds respective states and regulates their mutual co-
existence and relationship. The sources of international law include international customary
practices, treaties, bilateral agreements and conventions and could also form part of municipal
law. For instance section 12 of the 1999 constitution makes provision for the application of
international treaties subject to passage by the National Assembly.

(b) Stare decisis and its operation in Nigeria: It consists of law found in judicial decision.
According to P.U Umoh, a precedent ordinarily is no more than an earlier happening decision etc
taken as an example or rule for what comes later. According to Lord Wright, Precedents are what
they are because men faced with a problem ask: have we not had this before or something like it?
The practice of following precedents therefore is a natural phenomenon arising from mans desire
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to employ the wisdom and experience of the past as a guide in the handling of new problems.
Expressed in its simplest term, the doctrine of Judicial Precedent also known as Stare Decisis is
that a decision of a judge once given on a question of law binds both the judge himself and
subsequent judges in a court of lower rank to decide the same question of law. The Latin maxim
stare decisis is fully expressed as Stare Decisis non quieta movare, meaning to stand by a

134
decision and not to disturb that which is settled, was defined by the Supreme Court in Nepa v
Onah as meaning, stand by your decision and the decision of your predecessors, however wrong
they are and whatever injustice they inflict. The need for certainty and stability when
approaching the court is one of the essence of judicial precedent. What is required in the
application of the doctrine of precedent is that the case under consideration and the one being
urged as an authority for a particular principle or rule of law should agree on legally material
facts even if, as is often the case, not on point if detail. The material facts and the decision of the
earlier court thereupon constitute the ratio decidendi or reason for deciding which forms the
main plank of Judicial precedent. Where there has been a dissenting judgment, it is the decision
of the majority that forms the decision and the ratio decidendi of the court that ought to be
followed. In Agedah v Nkwocha, the Court of Appeal disapproved of the trial court's neglect of
the majority decision to follow the minority opinion in a Supreme Court case. The Ratio
Decidendi represents the reasoning or principle upon which a case is decided after considering
the facts of the case, the issue calling for a decision and the answer to those issues. Obiter
Dictum on the other hand refers to statement made by Judges though not forming part of the
main judgment are passing, incidental or collateral remarks not bearing directly upon the
question before the court as to affect the determination of the cause of action (see Bello v
Udoye).

Operation of the doctrine

The practicability of judicial precedent depends on a proper hierarchical system of courts within
a legal system. By virtue of Section 6 of the 1999 constitution, the hierarchy of courts in Nigeria
is established and such courts include:

A. The Supreme Court. E. High court of the State

B. The Court of Appeal F. Sharia court of Appeal of the FCT

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C. The Federal High Court G. Sharia court of appeal of a state

cc. National Industrial Court H. The Customary court of Appeal of the FCT

D. High court of the F.C.T I. A Customary court of Appeal of a state.

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 By virtue of Section 287 of the 1999 constitution, the doctrine of following decisions of a
superior court on questions of law in a case before a lower court is established.

The Supreme Court: Section 287(1) provides: The decisions of the Supreme Court shall be
enforced in any part of the federation by all authorities, and persons, and by courts with
subordinate jurisdiction to that of the Supreme Court. The Supreme Court, being the final court
of the land by virtue of section 235, unlike other courts is loosely bound by the doctrine of
precedent. While it is obliged to follow its past decisions, on certain conditions, it may depart
from the former decision. Underscoring the philosophical justification for easy departures in
appropriate cases, the Supreme Court in Odi v Osafile reasoned that: "laws are made for man and
not man for laws... Man is fallible, so are the errors of thought and thought processes surface and
are exposed and brought to the attention of its authors, there should be power of jurisdiction to
depart from the errors and thread the correct part - per Obaseki JSC. Oputa JSC in Adegoke
motors v Adesanya, succinctly stated the reason why the Supreme court may depart from its
earlier decision thus: We are not final because we are infallible, we are infallible because we are
final. Justices of the court are human beings capable of erring. It will certainly be short-sighted
arrogance not to accept this obvious truth. This court has the power to overrule itself... for it
gladly accepts that it is far better to admit an error than to persevere in error. In Abdulkarim v
Incar Nigeria ltd, the Supreme Court held that although it will respect its 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. Thus, the Supreme Court can veer from the path of
precedent in special cases including:

1. Where the decision was given per incuriam.

2. Where it found to be simply erroneous.

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3. Where it is capable of perpetuating injustice.

4. Where it will curtail constitutional right

5. Where the court is of the opinion that it is nevertheless in the general interest of justice and the
proper development of the law to do so.

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The Court of Appeal: It is the next court in line in the hierarchy. Section 287(1) provides: The
decisions of the Supreme Court shall be enforced in any part of the federation by all authorities,
and persons, and by courts with subordinate jurisdiction to that of the Supreme Court. Thus, the
Court of Appeal as well as all other courts listed under section 6(5) being a court of subordinate
jurisdiction is bound by the decisions of the Supreme Court. Unlike the Supreme Court, the
Court of Appeal is bound by its previous decision. However, it is generally believed that the
Court of Appeal, can depart from its previous decisions according to the rules laid down in the
case of Young v Bristol Aero plane co., at least in civil cases. By this the court may depart from
its previous decision if:

a. it was given per incuriam

b. it has to choose between two or more of its own previous decision and overrule the others

c. though not expressly overruled, it is incompatible with a decision of the Supreme court.

The Federal. State High Court and the National Industrial Court: A High court and all other
courts of concurrent or co-ordinate jurisdiction. Section 287(2) provides: The decisions of the
Court of Appeal shall be enforced in any part of the federation by all authorities and persons, and
by courts with subordinate jurisdiction to that of the Court of Appeal. All other courts below the
court of appeal as listed in Section 6(5) c-i referred to as courts of concurrent jurisdiction, are
bound by the decisions of the courts higher than it in the hierarchy as well as its own decisions as
noted in Olawoyin v Ag Northern Nigeria. In Dalhatu v Turaki, pertaining to election and
political parties internal affairs,, although the vital issue for determination was the same in
Onouha v Okafor which was decided earlier by the Supreme court, the High court refused to
follow the decision concluding that the Supreme Court should re-amend its position on the
internal affairs of political parties. Expressing its displeasure, the Supreme court, condemned the
behavior of the trial judge describing his refusal to be bound by the decision of the Supreme
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Court as gross insubordination, judicial rascality recklessness and impertinence which calls for
deprecation such a refusal is what the court had in Atolagbe v Awuni, described as an
abominable act, contrary to the ethics of his appointment that should not be condoned.
Concerning their own past decisions, one does not expect that a high court would freely depart
from them unless given per incuriam or considered wrong in law or against the stream of

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authorities or in the interest of justice. However, it should be noted that a high court is not bound
by the decision of another high court of concurrent or co-ordinate jurisdiction. In Barclays bank
v Hassan, 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 concurrent or co-ordinate jurisdiction. The decisions of a
state high court in purely state matters are binding on the lower courts in that particular state
while they remain only persuasive for those of other states.

Sharia and Customary court of Appeal. Appeals from these courts go to the court of Appeal.
Thus the court is bound by the decisions of the court of Appeal on matters involving the
application of Sharia and Customary law in the respective court. They are also bound by their
own decisions and it can be safe to say that they can depart if the decision was reached per
incuriam.

Also note that decision of foreign courts and courts of concurrent or co-ordinate jurisdiction are
of mere persuasive nature and the court may, if there is no existing local precedent in relation to
the matter, follow the decision if it feels that following it would be in the best interest of justice.
In Araka v Egbue, foreign authorities of the greatest learning cannot supplant Nigerian case law
which is rightly decided on any issue. Putting it succinctly, Karibi-whyte JSC in Adigun v Ag
Oyo declared: The court [the Supreme Court] has reached the stage where it does not regard
differences from the highest English or other commonwealth or other courts of common law
jurisdiction as necessarily suggesting that is wrong.

In conclusion, the importance of Judicial precedent in a legal system cannot be over

stated as it ensures certainty, uniformity within a legal system without which will result in an
unruly and a disorderly legal system.

4. Customary law: There is no universally accepted definition of customary law. Different terms
such as native law and customs, native law, native customary law, local law have been used
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interchangeably to refer to this class of law. C.O Okonkwo describes it as a body of customs and
traditions which regulate the various kinds of relationship between members of the community in
the traditional setting. Elias T.O describes it as a body of customs accepted by members of a
community as binding on them. Niki Tobi describes it as a body of customs, rules and tradition
which governs the relationship of members of a community. Section 49 of the Customary Law of

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Anambra State defined it as a rule or body of rules regulating rights and imposing correlative
duties, being a rule or body of rules which obtain and is fortified by established usage and which
is appropriate and applicable and applicable to any particular cause matter dispute issue or
question. In Oyewunmi Ajagungbade v Ogunsesan, Obaseki Jsc described it as the organic and
living law of an indigenous people of Nigeria regulating their lives and transaction... As noted by
the Supreme Court in Zaiden v Mohosen, it is not a law enacted by any competent legislature in
Nigeria, yet it is one that is enforceable and binding within Nigeria between the parties subject to
its sway. Characteristics: It is accepted by persons of such community as a law governing
transactions between them. It is unwritten as there is no single document in which customary can
be found rather it is handed down through generations orally. It is diverse as there is no uniform
system of customary law. It is flexible. In Lewis v Bankole, Osborne c,j noted "one striking
feature of West African culture is its flexibility. It is also applicable within a defined territory as
noted in the case of Taiwo v Dosunmu. Thus, a custom applicable in a particular ethnic group in
Nigeria cannot be applied in Ghana. Finally it must be in existence at the material time.

Validity of customary law: Every rule of customary law must necessarily meet the statutory
requirement laid down for its applicability. Each law providing for the recognition and
application of customary law contains a further qualification that it shall not be enforced as law if
it is repugnant to natural justice equity and good conscience or incompatible either directly or by
implication with any law for the time being in force [Section 20(1) of the cross river state high
court law]. In re-casting these qualification, Section 18(3) of the Evidence Act [2011]
{formerly section 14(3)} mentions that the custom must be in accordance with natural justice,
equity and good conscience but adds a new requirement that it must not be contrary to public
policy. Thus the tests to determine the validity of a rule of customary law are:

-Such rule must not be repugnant to natural justice, equity and good conscience.

- Such rule must not be incompatible either directly or by implication with any law for
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the time being in force.

- Such rule must not be contrary to public policy.

1. Repugnancy test: According to Nwokedi Jsc, the doctrine of repugnancy in my view affords

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the court the opportunity for fine tuning customary law to meet changed social conditions. When
necessary, more especially as there is no forum for repealing or amending customary laws...
When, however, customary law is confronted by a novel situation, the court has to consider its
applicability under existing social environment. The court in answering the question theoretically
conceded that a custom is not necessarily void because it is inconsistent with English principles
neither need it be weighed against the standards of advanced communities. But this in practice
has proved difficult for judges whose background understanding of the notion of right and wrong
are often in conflict with the habits and common conscience of the communities over whom they
sit in judgment. Since there is no definite standard for the determination of what laws are
repugnant, decisions in cases show the attitude of the court. In Edet v Essien, the court held that
a rule of customary law which gives the custody of a child fathered by a husband to another,
merely because the dowry paid to the other had not been returned was repugnant.

Similarly in Mariyama v Sadiku Ejo, the court had to consider a rule of the Igbira customary
law under which a child born ten months after divorce belongs to the former husband of its
mother. Rejecting this custom in this particular instance, the court was of the view that the child
should be given to its putative father. Also in Ukeje v Ukeje, the Supreme Court declared a rule
of customary law that disallowed a female child from inheriting from her father‟s property.

2. Incompatibility test: Another important requirement is that a rule of customary law to be

valid and enforceable, must not be incompatible, either directly or by implication with any law
for the time being in force. For instance Section 1(3) of the Constitution makes any law that is
inconsistent with the provisions of the constitution void to the extent of its inconsistency. Thus in
Guri v Hadeija Native Authority, the federal Supreme Court pronounced invalid a rule of the
Maliki school of Moslem law which disallowed accused persons standing trial for highway
robbery from defending themselves as being inconsistent with the fair hearing provisions of the
constitution. Also in Aoko v Fagbemi, the court held that by virtue of section 36(12) a rule of
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customary law which criminalized adultery was held to be incompatible as not being a written
law. Also in Agbai v Okogbue, the Supreme Court took the view that the alleged custom
compelling the respondent to join the age group association was subject to the provision of the
constitution relating to freedom of association and religion.

3. Public policy: The third requirement of incompatibility with the public policy which is even

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more nebulous than the repugnancy test, is concerned, is contained in section 18(3) of the
Evidence Act... in case of any custom relied upon in any judicial proceedings it shall not be
enforced if it is contrary to public policy [or is not in accordance with natural justice, equity and
good conscience]. Based on this test, a custom permitting two women to get 'married' to each
other was denied enforcement in Meribe v Meribe (This is now a criminal offence by virtue of
Section 1 and Section 5 of the Same Sex Prohibition Act which prescribes an imprisonment
term of 14 years).In Alake v Pratt, the court held that it is contrary to public policy when
considering the distribution of a man‟s estate, to place his children born out of wedlock on the
same pedestal as those born within.

Thus for a rule of customary law to be applied, it must pass the three test laid down in the
evidence act, the failure of which will deny its enforcement in the court.

Establishing customary law.

There are two methods of establishing customary law before non-customary courts as provided
for in section 16(1) of the Evidence Act 2011. They are: (i) by proof; (ii) by judicial notice.

1. Judicial notice: Judicial notice was defined in Common wealth Shipping Representative v
P.O Branch services as referring to facts which a judge can be called upon to receive and to act
upon either from his general knowledge of them or from inquiries to be made by himself for his
own information from sources to which it is proper for him to refer. By virtue of section 17 of
the Evidence Act, a custom may be judicially noticed by the court if it has not been acted upon
by a superior court of record or coordinate court in the same area to an extent which justifies the
court asked to apply it in assuming that the persons or class of persons concerned in that area
look upon that custom as binding in relation to circumstances similar to those under
consideration. It should be noted that the requirement of section 17 of the Evidence Act are less
stringent.
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2. Evidence or Proof of customs: Under Section 18(1) of the Evidence Act, where a particular
rule of customary law cannot be established as one of judicial noticed, it shall be proved as a
fact. Subsection 2 provides that where the existence or the nature of a custom applicable to a
given case is in issue, there may be given in evidence the opinions of persons who would be
likely to know of its existence in Section 73. The Evidence Act in Section 68 and 70 makes

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further provision for the means by which an alleged custom may be established by evidence.

Section 68(1): when the court has to form an option upon an a point... customary law or
custom... the opinions upon that point of persons especially stated in such... customary law or
customs... are admissible.

Section 68(2): persons so specially skilled...are called experts.

Section 70: in deciding questions of customary law and customs, the opinions of traditional
rulers or other persons having special knowledge of the customary law and custom and book or
manuscript recognized as legal authority by people indigenous to the locality in which such law
or custom applies are admissible.

Section 72 also makes provision for opinions of non experts.

From the foregoing, it would seem that the law recognizes two major sources of evidence in
proof of an alleged custom. These are witnesses and books or manuscript.

-Witnesses: The rules governing the use of witnesses in proof of a custom is the same as in the
proof of other facts. The law creates room for two kinds of witnesses (i) persons that may have
special knowledge of the customs [expert witness] as provided for under section 68 and (ii)
opinion of non-experts as provided for under section 72.

The witness qualifies because of his knowledge and experts must have shown to have
knowledge and experience in the relevant custom and so a person put forward as an expert must
have shown to have such knowledge and experience as noted in Ifeajuna v Ifeajuna. By and
large, the court will still have to form its opinion about the alleged custom based on the evidence
adduced. Even the evidence of experts is not binding. The court in each case has the discretion
on the weight to be attached to any piece of evidence. This will depend largely on the
circumstances of the case, the credibility of the witness, his knowledge of the customary law
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concerned and the availability of other supporting evidence. However, the court in Inyang v Ita
advised caution in the handling of the so-called expert evidence of the witnesses. Courts should
refrain from attempting to estimate individual credibility and instead concentrate on drawing
their conclusions from the general trend of evidence.

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-Books: The law accepts the use of books or manuscript in order to prove a rule of customary
law. These are material sources of law and under the general law they are cited and relied upon
where they have become authoritative treatises on the subject matter under review. However, the
requirement for a book to qualify for the aid of establishing customary law is less stringent and it
is not enough that the book or manuscript cited in support of the customary law of a community
is recognized by members of that community as a legal authority. For instance, AJISAFE'S
LAW AND CUSTOM OF THE YORUBA PEOPLE was relied upon in Adeseye v Taiwo. For a
book or manuscript to be admitted as proof, it must a) form a part of the evidence in the court b)
be recognized by natives as a legal authority. The court in Adeseye v Taiwo treats these
postulations as mere guides rather than strict immutable rules of law. In Olusesi v Oyelusi, the
court of appeal was aided by T.O Elias NIGERIAN LAND LAW in the determination of 'royal
estate' or 'stool land'. Similarly, in Oyelowo v Oyelowo, Nwabueze NIGERIAN LAND LAW
was relied upon in establishing the fact that the rightful and natural place of children in Nigeria is
the father‟s house.

In conclusion, a party seeking to apply any rule of customary law before a non-customary
court must pass through the requirements listed above.

5. Rules of statutory Interpretation. The function of law making rests with the legislature and
a lot of resources both human and material as well as time are expended in the course of enacting
a statute. They would have considered all loop holes and sought to resolve any uncertainty in
order to ensure that the law when passed is devoid of ambiguity. But as Lord Denning aptly puts
it "The draftsman conceived certainty and brought forth obscurity even absurdity. The proper
construction to be given to the provisions of a statute is invariably the burden of the courts, a
duty that is discharged through statutory interpretation. Statutory interpretation as defined by
Fitzgerald is the process by which the courts seek to ascertain the meaning of legislations
through the medium of authoritative forms in which it is expressed. Being vested with the power
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of adjudication of disputes, the court in the course of discharging this function are called upon to
interpret documents, construe the meaning of statute and determine the liabilities tights duties
and obligations of parties to a suit whether it be civil or criminal. Thus the task of the court can
be said to be an inquest into the intention or reason for the enactment of such statute [sentetia
legis] based on the letter of the statute [litera legis]

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This however does not afford them the opportunity to rewrite the statute but that such
interpretation should be within the ambit of the statute. As noted by Bairmain F.J in Okumagba v
Egbe, the office of the judge is JUS DICERE and not JUS DARE - to state the law and not to
give it. The rules are as follows. Literal rule, Golden rule, Mischief rule, Ejusdem generis rule,
Intrinsic guide and Extrinsic guides.

Literal rule: under this the courts apply the ordinary plain meaning of the statute devoid of
implications. According to Tridal cj in the sussex peerage case, the only rule for the construction
of acts of parliament is that they should be construed according to the intent of the parliament
which passed the act. If the words of the statute are in themselves precise and unambiguous then
no more ca be necessary then to expound these words in their natural and ordinary sense. The
words themselves alone do in such cases best declare the intention of the law maker. In
Adegbenro v Akintola, the Privy Council in interpreting section 33 of the 1963 constitution of
the western Nigeria which empowered the Governor to remove the premier if it appears to him
that the premier no longer commands the support of the majority of the house of assembly held
that the Governor could reach this conclusion without any limitation as to the material on which
he was to base his judgment. It might even appear to him in a dream. According to Obilade, this
cannon is useful only if using it does not lead to absurdity which the parliament could not have
intended.

Golden Rule: In Okeke v Anambra State, the court aptly states where the application of the
plain grammatical interpretation of a particular provision will produce absurd, inconsistent or
ambiguous results; the court may instead apply the words with a secondary meaning they are
capable of bearing. The expression used in a st5atute may be vague and so faulty that no sense
can be made of it; it may rather lead to outright absurdity if interpreted literally. For instance in
R v Bangaza, the Supreme Court was considering section 319(2) of the Criminal Code
prohibiting the death sentence for any offender who had not attained the age of 17 years found
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guilty of murder. The court was of the opinion that the relevant consideration should be the age
at the time of conviction and not at the time of conviction not at the time the offense was
committed (the right age ought to be at the time the offense is committed). It may be repugnant
to the law makers‟ intention to apply the literal meaning of the words of a statute. It is for this
realization that a further development was made to the rule in which the ordinary meaning of

144
words will be departed from where adopting them will lead to absurdity inconsistency or create
anomalous consequences which the legislature could never have intended. In Becke v Smith,
Parke B observed, "it is a very useful rule in the construction of a statute to adhere to the
ordinary meaning of the words used and to the grammatical constructions unless that it is art
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. Thus the Golden rule is resorted to when there is a clear
and gross imbalance ad the language of the statute is susceptible to the modifications required to
obviate the imbalance. The usual implication of the application of this rule is that the words of
the statute are ignored or those not there are read into it. In Re Signsworth, applying this rule, a
son who murdered his mother was disallowed from succeeding to the estate of the deceased as
"the issue" in order to ensure that he did not profit from the crime. Also in R v Eze, the court
readily construed the disjunctive article 'or' immediately before clause (c) in Section 2 of the
Criminal Procedure Act conjunctively as 'and' to make sense of the definition of an indictable
offence. Also in Adamolekun v Council of University of Ibadan, the Supreme Court had to
interpret Section 6 of the Constitution (Suspension and Modification) Decree 1966 which
provided that: "No question as to the validity of this or any other Decree or Edict shall be
entertained by any court of law in Nigeria." Section 3(4) of the same Decree made any edict that
was inconsistent with a decree void to the extent of such inconsistency. An application of the
literal rule would have precluded the court from giving effect to section 3(4) and pronouncing on
the validity of an offending Edict. The court, by applying the golden rule, interpreted section 6
constructively as not barring the court in this instance, and proceeded to declare the Edict void.

Mischief rule: Otherwise known as the rule in Heydons case is used to explain the intention of
the legislature or the purpose for which the law was enacted rather than to alter the expression
used by it. It is a useful tool whenever the meaning of a particular provision is in doubt.
According to Tridal cj in the Sussex Peerage case, if any doubt arises from the terms employed
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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 mischief which
they intended to redress.

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 The court in applying the mischief rule should be guided by the following considerations
as laid down in Re May fair property co per Lindley MR

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.

The court is enjoined to interpret the ambiguous section in such a way as to suppress the
mischief and advance the remedy. It could in the process consider not only the intrinsic aids but
also previous statute and case laws dealing with the subject matter. For instance Lord Pearce and
Wilberforce in Sweet v Parsley relied on the interpretation given to similar words in the
Dangerous Drugs Act 1920 to interpret the expression "concerned in the management of
premises used for the purpose of smoking cannabis" as used in the Dangerous Drugs Act of
1965. Also in Gorris v scott, a statutory order required animals carried on board a ship to be kept
in pens of a specified size. The defendant violated this order in respect of a ship on which the
plaintiffs‟ sheep were being transported, thereby causing the sheep to be washed over board
during a storm. The plaintiff sued the defendant for breach of a statutory duty. Rejecting his
claim, the court noted that the statute was enacted to check the spread of disease and not to
prevent drowning. Since the plaintiff was now seeking to apply the order to a different mischief
outside the intention of the legislature, he could not invoke the remedy sought

Ejusdem Generis: meaning of the same kind or nature, under this rule, where particular words
are followed by general words, the general words are interpreted restrictively to have a meaning
that is of the same kind or genus as the preceding ones already particularized. For instance,
where a statute refers t dogs cats goats and other animals, under this rule other animals would be
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interpreted as being animals of the same class i.e. Domestic animals. In Nasr v Bouari was faced
with the question whether premises used partly as living accommodation and partly as a night
club fell within the definition as premises used for other lawful purposes. The court refused to
give the phrase any wider interpretation beyond the particularized kinds of premises and
concluded that it meant premises used for purposes similar to living or sleeping, there by

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excluding night clubs. Also 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
Sunday. The classes of people prohibited were trades men, artificers, workmen, labourers or
other persons whatsoever. The court held that the phrase other persons whatsoever should be
limited to persons of the same genus as those expressly mentioned and could not include farmers
and barbers.

Also, the court can be guided by Noscitur Asociis [the context in interpreting a statute, you have
to consider the words, clauses, sections, provisions used in the context in which these sections
are used and then interpret them.

Intrinsic Guides: They are assistance that can guide one from within the statute itself. They
include:

- Preamble: This gives the history or reasons behind the particular enactment, a useful guide in
ascertaining the legislature intent and especially in the application of the mischief rule. In Okeke
v Ag Anambra, the court read the preamble to Decree No 13 of 1984 as part of the decree in
order to understand its provision and especially as the preamble was incorporated into the body
of the decree.

- Headings and titles: Headings are useful in the interpretation of ambiguous sections.

- Marginal / Side note

- Explanatory notes

Extrinsic aids: This refers to the assistance that can guide from outside the statute. In Ag Lagos
v Ag Federation over town and country planning matters, the Supreme Court had to consider
whether section 20 of the 1999 constitution (one of the Chapter II provisions on environmental
objectives) read with item 60a of the exclusive legislative list empowering the federal
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government to legislate on urban and regional planning in a state as against matters pertaining to
the environment generally. In order to show the intended scope and ambit of section 20, the court
delved into how the section of the constitution got its inspiration having been inserted for the
first time in the 1999 constitution. For this, it referred to the report of the 1994/1995
constitutional conference and the draft constitution contained therein and applied it to the case.

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Other extrinsic aids include: Black‟s law dictionary- for the meaning of the words, text book,
Interpretation act, case law, similar statute, rules of court etc.

The task of interpretation of statutes is one that requires the expertise of a specialized
body such as the Judiciary to achieve the main purpose behind the enactment of the statute.

6. Olowu v Olowu: The deceased Adeyinka Ayinde Olowu was a Yoruba man by birth,
belonged to the Ijesha cultural group. He lived most of his life in Benin City. He married Benin
women who begot for him all his children who are both plaintiffs and defendants in this case. In
1942, the deceased applied to the Omo n'oba of Benin (the traditional ruler 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 a lot of landed property both in Benin City and elsewhere in Bendel
state. The deceased died intestate in 1960. The defendants, two of his children were granted
letters of administration to administer the deceased estate. First defendant distributed the estate in
accordance with the Benin Customary law, but the other children claimed that the estate, ought
to have been distributed according to Ijesha customary law rather than by Benin customary law.
Plaintiffs brought an action against the defendants in the high court to; inter alia set aside the
distribution according to Benin customary law, and get a declaration that Ijesha customary law
was the applicable law. They lost in the high court, the high court being satisfied that Benin
customary law was the applicable law. Upon appeal to the court of appeal, the decision of the
high court was affirmed and the appeal was dismissed. Not being satisfied, the plaintiffs further
appealed. The Supreme Court dismissed the appeal, holding that the Benin customary law was
the applicable customary law for the distribution of the deceased estate being the personal law of
the deceased.

In this case, the Supreme Court set out the rules concerning internal court of law in
respect to personal law in the determination of the distribution of the estate of the deceased.
According to the court in that case, a person may change his personal law under Nigerian law,
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either from customary law to English law or vice versa by changing from one cultural group to
another. Such process is known as culturalization. Justice Bello describes Culturalization as a
change of status under customary law. It was noted by Justices Bello and Oputa in that case that
culturalization by assimilation does not take place by the mere act of settlement in a place. Such
settlement must be for such a long time that the settler and his descendants have merged with the

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natives of the place of settlement and have adopted their way of life and customs. When a person
previously subject to customary law undergoes a marriage celebration by Christian rites or
according to English law or in accordance with the provisions of the Marriage Act, he is deemed
to have rendered himself subject to English Law for the purpose of the distribution of his estate
upon intestacy. The word naturalization which takes place when a person becomes the subject of
a state to which he was before an alien, is a legal term with precise meaning.

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 FIRST SEMESTER, 2010/2011 SESSION

JIL 201: NIGERIAN LEGAL SYSTEM

Time Allowed: 2 hours 30 min

1. (a) Examine the relationship between the common law and the doctrine of equity.

(b) Mr. Lateef recently cited the following statutes as statute of federal application in a civil
proceeding in the high court of Lagos.

(i) Statute AX enacted on January 2 1900

(ii) Statute BG enacted on August 23 1899

(iii) Statute JT enacted on June 23 1870 but was repealed in England in September 1960

Discuss the appropriateness or otherwise of the above citations by Mr. Lateef.

2. The Supreme Court of Nigeria is not bound to the follow its previous decision but it will
follow them as a matter of course. Do you agree?

3. Chief Dosumu was an influential and wealthy fellow of Ijebu origin. He relocated from Ijebu-
ode at the age of 20 years to Benin City. He had several wives and many children in Benin.
Within 4 years of his relocation, he understood and spoke Edo [Benin] language very fluently.
He became a good confidant of the Oba of Benin. He was conferred, at the age 40 with the
chieftaincy title of the “Obahiagbon of Benin kingdom”. He named all his children Benin names.
He had landed properties in Ibadan, Benin and Enugu. He also had some stocks and shares in
blue chip companies in Nigeria. Chief Dosumu died intestate at the age of 65 years in a ghastly
motor accident along the Benin-Ore road. The children are now at logger heads as to the
applicable customary laws in the distribution of the deceased's estate. Advise the children as to
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the applicable conflict of law rules.

4. If every word or phrase in a statute has a concise meaning, there would not have been any
need to call on the courts for interpretation. Discuss the above assertion with decided cases.

5. Some writers have been of opinions that Islamic law is a mere appendage of indigenous

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customary law. Do you agree?

6. Discuss fully any TWO of the following:

(i) Validity doctrine in customary law

(ii) Nigerian legislations

(iii) Classification of law.

ANSWERS

1. (a) Equity and Common law.

Common Law: Common Law this refers to the law that was developed by the English courts
namely the Kings bench, the court of common pleas and the Court of Exchequer, from the
common practices in England. Prior to the Norman conquest of 1066, England did not have any
unified system to law applicable throughout the realm. It was during the reign of King William I
that saw the beginning of the unification of the various customs of the various communities in
old England into one unified body of rules known today as common law. The pre-existing
primitive legal system, then, consisted of customary rules and codes of law compiled by the
Anglo-Saxon Kings. There were communal courts like the county or hundred courts for the
various districts and each applied the local custom in its district under a rudimentary system of
proof. To achieve this unified system, the king sent out itinerant justices to administer justice
using the local customs of the areas they administered. They would converge at Westminster
where they usually made comparative analysis of the various local customs which they came
across when in the course of administrating justice in the various locations. When they went out
again on tour, if a case occurred on which the custom of another place within the realm seemed
to be more logical and accorded with justice, the judges started disregarding the applicable local
custom in place of the custom of another locality. In the course of time, there emerged a
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collection of uniform rules developed throughout, the whole realm as the "common law of the
realm". Hence, common law is judge made law, which are to be found in prior decided cases.
Common law is strict, formal and full of legalism. Every action at common law was initiated by
royal writs and unless the claim of the plaintiff came within the scope of the writ, he had no
cause of action and therefore no remedy. Even if he was able to obtain a writ to fit his claim, he

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may not be able to get an effective remedy at common law. From the above, common law would
be seen as a formulation of her majesty's court based on the prevailing customs and practices of
the generality of the people and designed to meet the demands and challenges of changing
situations.

Doctrine of Equity: The common law with its inadequate writ system and technicalities was
inadequate to meet the remedy sought by mist litigants. Such litigants were compelled to petition
the crown, as the fountain of justice, to exercise his prerogative. These petitions were considered
by the Kings council comprising principal officials including the Chancellor who was a key
member of the council. The chancellor being a religious man, sought to flexibly apply the
rigidness of the common law with the main purpose being to achieve justice and fairness. Later,
the chancellor received such petition directly from complainants and resolved them in his own
court known as the court of chancery. Such petition was commenced by way of BILLS. Hence
the court came to be known also as the court of conscience and the flexible form of justice was
called Equity. This was the beginning of the equitable jurisdiction of the court of chancery. The
rules of equity were initially very simple, applying differently to similar cases depending on the
chancellors‟ view on the proper administration of justice in the particular case. Later on, equity
later achieved some measure of certainty due to the growing need for precedent and certainty in
the application of equitable rules. The following maxims reflect the general judicial philosophy
of the court of equity:

1. Equity acts in personam

2. Equity does not suffer a wrong to be without a remedy

3. Equity follows the law.

4. Equity looks to the intent rather than the form

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5. Equity looks on that as done which ought to be done.

6. Equity imputes intent to fulfill an obligation

7. Equitable remedies are discretionary.

8. Delay defeats equity.

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9. He who comes to equity must come with clean hands.

10. He who seeks equity must do equity.

11. Where there are equal equities, the law will prevail.

12. Where there are equal equities, the first in time will prevail.

13. Equity, like nature does nothing in vain

14. Equality is equity

15. Equity will not permit a statute to be a cloak for fraud.

Conflicts between the Chancery court and the common law judges could not be avoided
as the Chancellor extended his jurisdiction. The conflict came into open in the Earl of Oxford's
case. In that case, the plaintiff assignee of a lease had built a house on the parcel of land the
subject matter of the assignment, and had planted trees in the garden. The defendant / owner
forcefully ejected him. The plaintiff sued the defendant in the common law court for wrongful
ejection. The court gave judgment for the defendant. The plaintiff then brought an action in the
court of Chancery praying the court to restrain the defendant from ejecting him from the house
he had built on the leased land. The Chancellor granted the injunction. Coke, the Chief Justice of
the King's Bench (an upper arm of the common law court) protested that the Chancellor should
not frustrate the rules of common law. The Chancellor denied that he was not frustrating
common law rules, but maintained that he was only applying his own rules to effect justice.
Basing his argument on the premise that equity and good conscience were in favor of the
plaintiff, the Chancellor, Lord Ellesmere said, interalia: "... by the law of God, he that builds a
house must live in it, yet the defendant in this case would have the house, gardens and orchards
which he did not build or plant... when a judgment is obtained by oppression, wrong or hard
conscience, the Chancellor would frustrate and set it aside, not for an error or defect in the
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judgment, but for the hard conscience of the party." The conflict was again referred to Lord
Bacon who was Attorney General and later Lord Chancellor during the reign of King James I
who resolved it in favor of the Chancery and held that if there was a direct clash between the
rules of common law and the doctrine of equity, the rules of equity will prevail. The landmark
decision did not remove the problems entirely. The fact that the common law and equity were

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administered in separate courts caused great inconvenience at the expense to litigants. If for
instance a litigant wished to establish a common law right but needed an equitable remedy to
enforce it, he would have to sue first in a common law court to establish his legal right, and then
in Chancery to obtain his remedy. This was because the common law court had no power to
grant equitable remedies such as injunction or specific performance, or rescission whilst the
court of chancery could not award damages. The anomalies were gradually removed until 1875
when the Judicature Act eventually merged or fused the administration of the two systems. In
Nigeria, the same court is also administering both the rules of common law and the doctrine of
equity. Gone are the days when we have the Kings court and the court of chancery operating
separately. It must be pointed out that although the Act had fused the administration of the two
legal systems, it did not abo0lisg the distinction between the legal and equitable rights. In this
context, a legal right is one that is enforceable strictly based on the provisions of the law. There
are several cases in the various substantive law subjects where the doctrine of equity has been
applied to mitigate the harshness of the common law rules. For instance the equitable doctrine of
part performance was introduced to mitigate the harshness of the Statute of Frauds Act 1677.

(b) By virtue of the relevant reception provisions, the courts are enjoined to apply English law
comprising the Common law, Doctrine of equity and statute of general application which was in
force on the 1st of January 1900 (See section 28 of the High court law of Northern Nigeria
and relevant provisions in the High court laws of various states). Although the reception date has
caused a lot of academic controversy, it is quite clear from the reception provisions that
enforceability is in relation to pre-1900 statutes. Thus, any statute enacted in England after 1st
January 1900 would not be enforceable in Nigeria as a Statute of General Application. Also, any
statute that has been received still applies in Nigeria even though it has been repealed in
England, unless it is repealed by the Nigerian legislature.

(i) Statute AX enacted on January 2 1900: This statute will not be applied being a post
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1st of January 1900 statute.

(ii) Statute BG enacted on August 23 1899: This statute will be applied being a statute in
force before the 1st of January 1900

(iii) Statute JT enacted on June 23 1870 but was repealed in England in September 1960.

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Being a pre 1900 statute, the statute will still be applicable even though it has been repealed in
England unless it has been repealed in Nigeria. For instance, the Statute of Frauds Act 1677 is
still applicable in various parts of the country despite being repealed in England by subsequent
enactments.

2. The Supreme Court of Nigeria is not bound to the follow its previous decision but it will
follow them as a matter of course.

Judicial Precedents or Stare Decisis consists of law found in judicial decision. According
to P.U Umoh, a precedent ordinarily is no more than an earlier happening decision etc taken as
an example or rule for what comes later. According to Lord Wright, Precedents are what they are
because men faced with a problem ask: have we not had this before or something like it? The
practice of following precedents therefore is a natural phenomenon arising from mans desire to
employ the wisdom and experience of the past as a guide in the handling of new problems.
Expressed in its simplest term, the doctrine of Judicial Precedent also known as Stare Decisis is
that a decision of a judge once given on a question of law binds both the judge himself and
subsequent judges in a court of lower rank to decide the same question of law. The Latin maxim
stare decisis is fully expressed as Stare Decisis non quieta movare, meaning to stand by a
decision and not to disturb that which is settled, was defined by the supreme court in Nepa v
Onah as meaning, stand by your decision and the decision of your predecessors, however wrong
they are and whatever injustice they inflict. The need for certainty and stability when
approaching the court is one of the essence of judicial precedent. What is required in the
application of the doctrine of precedent is that the case under consideration and the one being
urged as an authority for a particular principle or rule of law should agree on legally material
facts even if, as is often the case, not on point if detail. The material facts and the decision of the
earlier court thereupon constitute the ratio decidendi or reason for deciding which forms the
main plank of Judicial precedent. Where there has been a dissenting judgment, it is the decision
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of the majority that forms the decision and the ratio decidendi of the court that ought to be
followed. In Agedah v Nkwocha, the Court of Appeal disapproved of the trial court's neglect of
the majority decision of the Supreme Court to follow the minority opinion in a Supreme Court
case. The Ratio Decidendi represents the reasoning or principle upon which a case is decided
after considering the facts of the case, the issue calling for a decision and the answer to those

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issues and this forms the main part of precedents. Obiter Dictum on the other hand refers to
statement made by Judges though not forming part of the main judgment are passing, incidental
or collateral remarks not bearing directly upon the question before the court as to affect the
determination of the cause of action (see Bello v Udoye).

By virtue of Section 287 of the 1999 constitution, the doctrine of following decisions of a
superior court on questions of law in a case before a lower court is established.

The Supreme Court: Section 287(1) provides: The decisions of the Supreme Court shall be
enforced in any part of the federation by all authorities, and persons, and by courts with
subordinate jurisdiction to that of the Supreme Court. The Supreme Court, being the final court
of the land by virtue of section 235, unlike other courts is loosely bound by the doctrine of
precedent. While it is obliged to follow its past decisions, on certain conditions, it may depart
from the former decision. Underscoring the philosophical justification for easy departures in
appropriate cases, the Supreme Court in Odi v Osafile reasoned that: "laws are made for man and
not man for laws... Man is fallible, so are the errors of thought and thought processes surface and
are exposed and brought to the attention of its authors, there should be power of jurisdiction to
depart from the errors and thread the correct part - per Obaseki JSC. Oputa JSC in Adegoke
motors v Adesanya, succinctly stated the reason why the Supreme Court may depart from its
earlier decision thus: We are not final because we are infallible, we are infallible because we are
final. Justices of the court are human beings capable of erring. It will certainly be short-sighted
arrogance not to accept this obvious truth. This court has the power to overrule itself... for it
gladly accepts that it is far better to admit an error than to persevere in error. In Abdulkarim v
Incar Nigeria ltd, the Supreme Court held that although it will respect its 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. Thus, the Supreme Court can veer from the path of
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precedent under the following circumstances:

1. Where the decision was given per incuriam.

2. Where it found to be simply erroneous.

3. Where it is capable of perpetuating injustice.

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4. Where it will curtail constitutional right

5. Where the court is of the opinion that it is nevertheless in the general interest of justice and the
proper development of the law to do so.

The Supreme Court will follow its earlier decision if it is obliged, however as a matter of
necessity, it can depart from its earlier decision to do justice to the particular case before it.

3. Applicable rules in respect to subject matter under conflict of laws.

1. Land succession: A land cause or matter means one relating to ownership, occupation or
possession or relating to any right or interest relating to land for states comprising the old
Western region. The law is that the customary law of the place, the Lex Situs, where the land is
situated will apply [Section 20 (1) of the Customary court law of Western Nigeria]. This law
makes for uniformity and every one transacting on them will be subject to the same law. The
same provisions apply in the North. As far as the East is concerned, there is no statutory
provision prescribing the law that will apply in land cases. However, it is suggested that
following the general rule that the lex situs will apply. In Ukeje v Ukeje, the Court of Appeal
asserted that it is trite law that succession to immovable real property is the lex situs although it
is not clear if the court is mindful of the fact that the issue at stake here was customary as against
the general law. By applying the lex situs, the court upheld Yoruba being the law of Lagos where
the properties were located, as the applicable law although the deceased and all parties concerned
was Ibo. It should be noted as held in the case of Ekem v Nerba, where the personal law of the
deceased cannot be easily ascertained, the lex situs will apply.

2. Succession to Personal Property: In Western Nigeria, the law provides that the appropriate
customary law in causes and matters relating to inheritance shall be the customary applying to
the deceased i.e. the individual or personal law of the deceased. Niki Tobi defines personal law
as the law the deceased would normally be subject to when he was alive. Thus in Ghamson v
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Wobill, a claim to inherit the property through of the deceased by praying the court to apply the
lex situs rule was rejected as the court and held that parties to succession are normally bound by
the individual law of the deceased. Personal law may also include element of religious law. In
Estate of Arimotu v Alayo, the court held that the law to be applied to the estate of an Ijebu
Muslim woman was Ijebu customary law on the ground that no specific evidence was given of

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the customs of Muslim in the Yoruba area of Ijebu land. Similarly, in Tapa v kuka, the court
held that Nupe customary law being the personal law of the deceased was the applicable
customary law instead of Lagos Yoruba law.

The trend of judicial opinion in determining whether to apply either customary law or Islamic
law is to examine the deceased way of life in all aspects of his life in order to determine the
whether he took his religion as a way of life in all aspects of his life. Thus, in Asiatta v Goncalla,
Moslem law was applied because the deceased and his wife lived like Moslems. Similarly, in
Olowu v Olowu, the deceased Adeyinka Ayinde Olowu was a Yoruba man by birth, belonged to
the Ijesha cultural group. He lived most of his life in Benin City. He married Benin women who
begot for him all his children who are both plaintiffs and defendants in this case. In 1942, the
deceased applied to the Omo n'oba of Benin (the traditional ruler 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 a lot of landed property both in Benin City and elsewhere in Bendel state. The
deceased died intestate in 1960. The defendants, 2 of his children were granted letters of
administration to administer the deceased estate. First defendant distributed the estate in
accordance with the Benin Customary law, but the other children claimed that the estate, ought
to have been distributed according to Ijesha customary law rather than by Benin customary law.
Plaintiffs brought an action against the defendants in the high court to; interalia set aside the
distribution according to Benin customary law, and get a declaration that Ijesha customary law
was the applicable law. They lost in the high court, the high court being satisfied that Benin
customary law was the applicable law. Upon appeal to the court of appeal, the decision of the
high court was affirmed and the appeal was dismissed. Not being satisfied, the plaintiffs further
appealed. The Supreme Court dismissed the appeal, holding that the Benin customary law was
the applicable customary law for the distribution of the deceased estate being the personal law of
the deceased. According to the court, a person may change his personal law under Nigerian law,
either from customary law to English law or vice versa by changing from one cultural group to
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another. It was noted by Justices Bello and Oputa in that case that culturalization by assimilation
does not take place by the mere act of settlement in a place. Such settlement must be for such a
long time that the settler and his descendants have merged with the natives of the place of
settlement and have adopted their way of life and customs. When a person previously subject to
customary law undergoes a marriage celebration by Christian rites or according to English law or

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in accordance with the provisions of the Marriage Act, he is deemed to have rendered himself
subject to English Law for the purpose of the distribution of his estate upon intestacy. The word
naturalization which takes place when a person becomes the subject of a state to which he was
before an alien, is a legal term with precise meaning. On the other hand, Justice Bello describes
culturalization as a change of status under customary law.

From the foregoing, it can be seen that where the personal law of the deceased can be
determined, such law will be applied in the distribution of the deceased estate. Thus, in the
instant case, it can be seen that Chief Dosumu has accepted the culture of the Benin people as his
and has assimilated with it. Thus, Benin customary law would be the applicable customary law
for the distribution of his estate.

4. Rules of statutory Interpretation. The function of law making rests with the legislature and
a lot of resources both human and material as well as time is expended in the course of enacting
a statute. They would have considered all loop holes and sought to resolve any uncertainty in
order to ensure that the law when passed is devoid of ambiguity. But as Lord Denning aptly puts
it "The draftsman conceived certainty and brought forth obscurity even absurdity. The proper
construction to be given to the provisions of a statute is invariably the burden of the courts, a
duty that is discharged through statutory interpretation. Statutory interpretation as defined by
Fitzgerald is the process by which the courts seek to ascertain the meaning of legislations
through the medium of authoritative forms in which it is expressed. Being vested with the power
of adjudication of disputes, the court in the course of discharging this function are called upon to
interpret documents, construe the meaning of statute and determine the liabilities tights duties
and obligations of parties to a suit whether it be civil or criminal. Thus the task of the court can
be said to be an inquest into the intention or reason for the enactment of such statute [sentetia
legis] based on the letter of the statute [litera legis]

This however does not afford them the opportunity to rewrite the statute but that such
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interpretation should be within the ambit of the statute. As noted by Bairmain F.J in Okumagba
v Egbe, the office of the judge is JUS DICERE and not JUS DARE - to state the law and not o
give it. The rules are as follows. Literal rule, Golden rule, mischief rule, Ejusdem generis rule,
intrinsic guide and Extrinsic guides.

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Literal rule: under this the courts apply the ordinary plain meaning of the statute devoid of
implications. According to Tridal c.j in the sussex peerage case, the only rule for the
construction of acts of parliament is that they should be construed according to the intent of the
parliament which passed the act. If the words of the statute are in themselves precise and
unambiguous then no more ca be necessary then to expound these words in their natural and
ordinary sense. The words themselves alone do in such cases best declare the intention of the law
maker. In Adegbenro v Akintola, the Privy council in interpreting section 33 of the 1963
constitution of the western Nigeria which empowered the Governor to remove the premier if it
appears to him that the premier no longer commands the support of the majority of the house of
assembly held that the Governor could reach this conclusion without any limitation as to the
material on which he was to base his judgment. It might even appear to him in a dream.
According to Obilade, this cannon is useful only if using it does not lead to absurdity which the
parliament could not have intended.

Golden Rule: In Okeke v Anambra State, the court aptly states where the application of the
plain grammatical interpretation of a particular provision will produce absurd, inconsistent or
ambiguous results; the court may instead apply the words with a secondary meaning they are
capable of bearing. The expression used in a statute may be vague and so faulty that no sense can
be made of it, it may rather lead to outright absurdity if interpreted literally. For instance in R v
Bangaza, the Supreme Court was considering section 319(2) of the Criminal Code prohibiting
the death sentence for any offender who had not attained the age of 17 years found guilty of
murder. The court was of the opinion that the relevant consideration should be the age at the time
of conviction and not at the time of conviction not at the time the offense was committed (the
right age ought to be at the time the offense is committed). It may be repugnant to the law
makers‟ intention to apply the literal meaning of the words of a statute. It is for this realisation
that a further development was made to the rule in which the ordinary meaning of words will be
departed from where adopting them will lead to absurdity inconsistency or create anomalous
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consequences which the legislature could never have intended. In Becke v Smith, Parke B
observed, "it is a very useful rule in the construction of a statute to adhere to the ordinary
meaning of the words used and to the grammatical constructions unless that it is art 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

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such inconvenience but no further. Thus the Golden rule is resorted to when there is a clear and
gross imbalance ad the language of the statute is susceptible to the modifications required to
obviate the imbalance. The usual implication of the application of this rule is that the words of
the statute are ignored or those not there are read into it. In Re Signsworth, applying this rule, a
son who murdered his mother was disallowed from succeeding to the estate of the deceased as
"the issue" in order to ensure that he did not profit from the crime. Also in R v Eze, the court
readily construed the disjunctive article 'or' immediately before clause (c) in Section 2 of the
Criminal Procedure Act conjunctively as 'and' to make sense of the definition of an indictable
offence. Also in Adamolekun v Council of University of Ibadan, the Supreme Court had to
interpret Section 6 of the Constitution (Suspension and Modification) Decree 1966 which
provided that: "No question as to the validity of this or any other Decree or Edict shall be
entertained by any court of law in Nigeria." Section 3(4) of the same Decree made any edict that
was inconsistent with a decree void to the extent of such inconsistency. An application of the
literal rule would have precluded the court from giving effect to section 3(4) and pronouncing on
the validity of an offending Edict. The court, by applying the golden rule, interpreted section 6
constructively as not barring the court in this instance, and proceeded to declare the Edict void.

Mischief rule: Otherwise known as the rule in Heydons case is used to explain the intention of
the legislature or the purpose for which the law was enacted rather than to alter the expression
used by it. It is a useful tool whenever the meaning of a particular provision is in doubt.
According to Tridal 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 mischief which
they intended to redress.

The court in applying the mischief rule should be guided by the following considerations
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as laid down in Re May fair property co per Lindley MR

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?

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d) What was the true reason for the remedy?

The court is enjoined to interpret the ambiguous section in such a way as to suppress the
mischief and advance the remedy. It could in the process consider not only the intrinsic aids but
also previous statute and case laws dealing with the subject matter. For instance Lord Pearce and
Wilberforce in Sweet v. Parsley relied on the interpretation given to similar words in the
Dangerous Drugs Act 1920 to interpret the expression "concerned in the management of
premises used for the purpose of smoking cannabis" as used in the Dangerous Drugs Act of
1965. Also in Gorris v. scott, a statutory order required animals carried on board a ship to be
kept in pens of a specified size. The defendant violated this order in respect of a ship on which
the plaintiff‟s sheep were being transported, thereby causing the sheep to be washed over board
during a storm. The plaintiff sued the defendant for breach of a statutory duty. Rejecting his
claim, the court noted that the statute was enacted to check the spread of disease and not to
prevent drowning. Since the plaintiff was now seeking to apply the order to a different mischief
outside the intention of the legislature, he could not invoke the remedy sought.

Ejusdem Generis: meaning of the same kind or nature, under this rule, where particular words
are followed by general words, the general words are interpreted restrictively to have a meaning
that is of the same kind or genus as the preceding ones already particularized. For instance,
where a statute refers to dogs, cats, goats and other animals, under this rule other animals would
be interpreted as being animals of the same class i.e. Domestic animals. In Nasr v. Bouari was
faced with the question whether premises used partly as living accommodation and partly as a
night club fell within the definition as premises used for other lawful purposes. The court refused
to give the phrase any wider interpretation beyond the particularized kinds of premises and
concluded that it meant premises used for purposes similar to living or sleeping, there by
excluding night clubs. Also 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
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Sunday. The classes of people prohibited were trades men, artificers, workmen, labourers or
other persons whatsoever. The court held that the phrase other persons whatsoever should be
limited to persons of the same genus as those expressly mentioned and could not include farmers
and barbers.

Also, the court can be guided by Noscitur Asociis [the context in interpreting a statute, you have

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to consider the words, clauses, sections, provisions used in the context in which these sections
are used and then interpret them.

Intrinsic Guides: They are assistance that can guide one from within the statute itself. They
include:

- Preamble: This gives the history or reasons behind the particular enactment, a useful guide in
ascertaining the legislature intent and especially in the application of the mischief rule. In Okeke
v. Ag Anambra, the court read the preamble to Decree No. 13 of 1984 as part of the decree in
order to understand its provision and especially as the preamble was incorporated into the body
of the decree.

- Headings and titles: Headings are useful in the interpretation of ambiguous sections.

- Marginal / Side note

- Explanatory notes

Extrinsic aids: This refers to the assistance that can guide from outside the statute. In Ag Lagos
v. Ag Federation over town and country planning matters, the Supreme court had to consider
whether section 20 of the 1999 constitution (one of the Chapter II provisions on environmental
objectives) read with item 60a of the exclusive legislative list empowering the federal
government to legislate on urban and regional planning in a state as against matters pertaining to
the environment generally. In order to show the intended scope and ambit of section 20, the court
delved into how the section of the constitution got its inspiration having been inserted for the
first time in the 1999 constitution. For this, it referred to the report of the 1994/1995
constitutional conference and the draft constitution contained therein and applied it to the case.
Other extrinsic aids include: Black‟s law dictionary- for the meaning of the words, text book,
Interpretation act, case law, similar statute, rules of court etc.
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5. Customary law distinct from Islamic law

Customary law: There is no universally accepted definition of customary law. Different terms
such as native law and customs, native law, native customary law, local law have been used
interchangeably to refer to this class of law. C.O Okonkwo describes it as a body of customs and

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traditions which regulate the various kinds of relationship between members of the community in
the traditional setting. Elias T.O describes it as a body of customs accepted by members of a
community as binding on them. Niki Tobi describes it as a body of customs, rules and tradition
which governs the relationship of members of a community. Section 49 of the Customary Law of
Anambra state defined it as a rule or body of rules regulating rights and imposing correlative
duties, being a rule or body of rules which obtain and is fortified by established usage and which
is appropriate and applicable and applicable to any particular cause matter dispute issue or
question. In Oyewunmi Ajagungbade v. Ogunsesan, Obaseki Jsc described it as the organic and
living law of an indigenous people of Nigeria regulating their lives and transaction... As noted by
the Supreme Court in Zaiden v. Mohosen, it is not a law enacted by any competent legislature in
Nigeria, yet it is one that is enforceable and binding within Nigeria between the parties subject to
its sway. Characteristics: It is accepted by persons of such community as a law governing
transactions between them. It is unwritten as there is no single document in which customary can
be found rather it is handed down through generations orally. It is diverse as there is no uniform
system of customary law. It is flexible. In Lewis v. Bankole, Osborne c.j noted "one striking
feature of West African culture is its flexibility. It is also applicable within a defined territory as
noted in the case of Taiwo v. Dosunmu. Thus, a custom applicable in a particular ethnic group in
Nigeria cannot be applied in Ghana. Finally it must be in existence at the material time.

Islamic law, unlike customary law is not indigenous to the Nigerian people. Its history in Nigeria
is related to the history of the establishment of Islamic religion in Nigeria, i.e. the Jihad of
Usman Dan Fodio in 1804. Islamic law, unlike customary law is written and rigid. The sources
of Islamic law are the Holy Koran, the practice of the Prophet Mohammed [Sunna], the
consensus of the scholars [the Ijmas], and analogical conclusions from the Holy Koran [the
Qiyas], the Hadith. Though the Sharia legal system has many varieties, the brand practiced in
Nigeria is the Maliki School and it is almost uniformly practiced in all areas governed by the
Maliki School, though with some local variations. The difference between the Sharia and
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customary law was acknowledged by the supreme court in Usman v. Usman where Bello C.J.N
said, definition of customary law in Section 2 of the Customary court of appeal law which means
the rules of conduct...as established by custom and usage is incapable of including Muslim law.
since the decision in Lewis v. Bankole,... customary law has been stated to be unwritten
customary law recognized as law by members of an ethnic group and it is a mirror of accepted

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usage... on the other hand, it is a notorious fact that Muslim law is written in the Holy Koran, in
the numerous books of the Hadith.

From the foregoing it can be seen that Islamic law is a distinct system of law as regards
customary law and not a mere appendage of customary law.

6. Discuss fully the following:

(i) Validity doctrine in customary law: Every rule of customary law must necessarily meet
the statutory requirement laid down for its applicability. Each law providing for the recognition
and application of customary law contains a further qualification that it shall not be enforced as
law if it is repugnant to natural justice equity and good conscience or incompatible either directly
or by implication with any law for the time being in force [Section 20(1) of the cross river state
high court law. In re-casting these qualification, Section 18(3) of the Evidence Act [2011]
{formerly section 14(3)} mentions that the custom must be in accordance with natural justice,
equity and good conscience but adds a new requirement that it must not be contrary to public
policy. Thus the tests to determine the validity of a rule of customary law are:

-Such rule must not be repugnant to natural justice, equity and good conscience.

- Such rule must not be incompatible either directly or by implication with any law for the time
being in force.

- Such rule must not be contrary to public policy.

1. Repugnancy test: According to Nwokedi Jsc: the doctrine of repugnancy in my view affords
the court the opportunity for fine tuning customary law to meet changed social conditions. When
necessary, more especially as there is no forum for repealing or amending customary laws...
When, however, customary law is confronted by a novel situation, the court has to consider its
applicability under existing social environment. The court in answering the question theoretically
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conceded that a custom is not necessarily void because it is inconsistent with English principles
neither need it be weighed against the standards of advanced communities. But this in practice
has proved difficult for judges whose background understanding of the notion of right and wrong
are often in conflict with the habits and common conscience of the communities over whom they
sit in judgment. Since there is no definite standard for the determination of what laws are

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repugnant, decisions in cases show the attitude of the court. In Edet v. Essien, the court held that
a rule of customary law which gives the custody of a child fathered by a husband to another,
merely because the dowry paid to the other had not been returned was repugnant.

Similarly in Mariyama v. Sadiku Ejo, the court had to consider a rule of the Igbira customary
law under which a child born ten months after divorce belongs to the former husband of its
mother. Rejecting this custom in this particular instance, the court was of the view that the child
should be given to its putative father. Also in Ukeje v. Ukeje, the Supreme Court declared a rule
of customary law that disallowed a female child from inheriting from her father‟s property.

2. Incompatibility test. Another important requirement is that a rule of customary law to be

valid and enforceable, must not be incompatible, either directly or by implication with any law
for the time being in force. For instance Section 1(3) of the constitution makes any law that is
inconsistent with the provisions of the constitution void to the extent of its inconsistency. Thus in
Guri v. Hadeija Native Authority, the federal Supreme Court pronounced invalid a rule of the
Maliki school of Muslim law which disallowed accused persons standing trial for highway
robbery from defending themselves as being inconsistent with the fair hearing provisions of the
constitution. Also in Aoko v. Fagbemi, the court held that by virtue of section 36(12) a rule of
customary law which criminalized adultery was held to be incompatible as not being a written
law. Also in Agbai v. Okogbue, the Supreme Court took the view that the alleged custom
compelling the respondent to join the age group association was subject to the provision of the
constitution relating to freedom of association and religion.

3. Public policy: The third requirement of incompatibility with the public policy which is even
more nebulous than the repugnancy test, is concerned, is contained in section 18(3) of the
Evidence Act... in case of any custom relied upon in any judicial proceedings it shall not be
enforced if it is contrary to public policy [or is not in accordance with natural justice, equity and
good conscience]. Based on this test, a custom permitting two women to get 'married' to each
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other was denied enforcement in Meribe v Meribe (This is now a criminal offence by virtue of
Section 1 and Section 5 of the Same Sex Prohibition Act which prescribes an imprisonment term
of 14 years). In Alake v. Pratt, the court held that it is contrary to public policy when considering
the distribution of a man‟s estate, to place his children born out of wedlock on the same pedestal
as those born within.

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 Thus for a rule of customary law to be applied, it must pass the three test laid down in the
evidence act, the failure of which will deny its enforcement in the court.

(ii) Nigerian legislations: By virtue of Section 4(1) and 4(6) of the 1999 constitution, the
legislative powers of the federation are vested respectively in the national assembly consisting of
the Senate and the House of Representatives for the federation and the House of assembly of the
state. The extent to which this power is exercisable is contained in the legislative lists contained
in the legislative lists contained in the second schedule to the constitution. The power of the
national assembly to make laws shall be exercised by bills passed by both the senate and the
House of Representatives.

Ordinary bills: Section 58(1) provides for the method of passing bills. It provides: The power of
the national assembly to make laws shall be exercised by bills passed by both the senate and the
house of representatives and, except as otherwise provided by subsection (5) of this section,
assented to by the president. Section 58(2) An act of the national assembly commences as a bill
and may be introduced in the senate or House of Representatives. A bill may be a public bill
affecting the interest of the public at large or a private bill which may be intended to benefit the
limited interest of a section of the society. A bill passes through three stages before it is passed
into law. At the first stage, the bill is read formally on the floor of the house to introduce the
other members of the house to the bill. The second reading and debate follow. It is at this stage
that the purpose merits and demerits of the bill are considered extensively. Necessary
amendments are made at this stage and where it is expedient, it is sent to a committee to
investigate further into making the bill suitable for enforceability. The committee reports back to
the house with the necessary amendments to the bill. A third and final reading is done of the
agreed version of the bill and no further amendments may be entertained at this stage. To
become law, it must be passed by a simple majority of the members present in the house from
where the bill originated after which it is sent to the other house to go through a similar process.
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After that other house has passed the bill and the agreements is reached between the two houses,
the adopted bill is then presented to the President for his assent which must be given within 30
days of the presentation of the bill to him. Failure to give assent to the bill, the bill can be passed
by two third majorities of the all members in each house which if it scales through, such a bill
would become law. The procedure is the same for the state house of assembly with the exception

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of the dual system i.e. there is only one house to pass the bill as provided in Section 100 which is
in pari matera with section 58. In National Assembly v. The President, over the Electoral bill
2002, which the president withheld his assent and the bill was passed by an ordinary quorum of
both houses, the Court of Appeal, in interpreting the provisions of section 58(5), overruling the
decision of the trial court held that the bill had not been properly passed as the majority needed
for the passage of the bill is a majority of the all the members of each house and not a quorum.

Money Bills: Section 59 of the constitution provides a special method for the passage of money
bills. This section, according to Subsection 59 applies to appropriation bills or a supplementary
bill including any other bill for the payment, issue or withdrawal from the consolidated Revenue
Fund or any other public fund for the federation or any money charged thereon or any alteration
in the amount of such a payment issue or withdrawal and a bill for the imposition of or increase
in any tax, duty or fee or any reduction, withdrawal or cancellation thereof. Where any of the
aforementioned bill is passed by one house but not by the other house within a period of two
months of the commencement of the financial year, the President of the Senate shall within 14
days of the lapse of the two month period, arrange and convene a meeting of the Joint finance
committee to examine the bill with a view to resolving the differences between the two houses.
Where the joint finance committee fails to resolve this difference, then the bill shall be presented
to the National assembly sitting at a joint meeting, and if the bill is passed at such joint meeting,
it shall be presented to the president for assent. Where he fails to give his assent within 30 days,
the bill is then sent back to the National assembly sitting at a joint meeting, and if passed at such
joint meeting by a two-third majority, the bill shall become law. In Ag Bendel v. Ag Fed. where
the Joint Finance committee passed the bill to the President for assent instead of the national
assembly, the court held that even where the joint committee arrives at a compromise, their
resolution is still subject to the approval of each house before the bill is finally presented to the
President for his assent. The same rules in respect to the veto power of the president apply.
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(ii)Classification of law: It should be noted that there is no universal or water tight classification
of law as most classification often overlap. Law can therefore be classified into:

(a) Public law and private law (e) Substantive law and adjectival or procedural law

(b) Civil law and criminal law (f) Customary law and non-customary law

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(c) Civil law and common law (g) Written law and unwritten law.

(d) Municipal law and international law.

(A) Public Law and Private Law: According to Niki Tobi, Public law is concerned with the
protection of the state. It is concerned with the smooth running of the machinery of the state and,
consequently, caters for cases where the interest of the society is directly involved or the smooth
interaction between governmental agencies and organs of the state is threatened. Branches of
Public law include Constitutional law, Administrative law, Criminal law, International law
amongst others. Private law on the other hand, deals with the relationship between individuals. It
comprises those laws that serve to regulate the conduct of persons in their interpersonal dealings,
conferring status, rights and obligations on individuals or juristic persons. It deals with the
protection of individual rights. It includes such diverse areas as the law of contract, property law,
tort, family law and succession, commercial law, equity and trusts amongst others. It should be
noted that a cause of action could arise in both classes of law. For instance, a slap could give rise
to an action in tort for battery [Private law] and crime of assault [Public law]

(B) Civil Law and Criminal Law: Civil law is concerned with competing private interest and
obligations and abounds mostly in our unwritten or judge made laws. It is often invoked by
private persons although the state or its organs may, in appropriate cases, initiate or defend
actions as juristic persons. The remedy at common law is mostly damages while equitable
remedies include the prerogative remedies of specific injunction amongst others. The party
bringing the action is referred to as the plaintiff (or the petitioner in divorce, election and
winding-up proceedings where actions are commenced by petition while the adverse party is
known as the defendant (or respondent as the case may be). Branches of civil law include
contract, torts, land law and family law. Civil law has as their objectives the recovery of money
and other property or the enforcement of a right or advantage. According to the court in Mellor v
Denham, criminal law is the branch of law which seeks to protect the interest of the public at
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large by punishing certain conducts which are believed to be harmful to the society to permit
such conducts to exist or continue. It involves the enforcement of those rules of conduct usually
statutory, the infringement of which will invoke a punishment there under. Punishment is
imposed generally by imprisonment or fine or both. The party instituting a criminal action which
is usually on behalf of the State is the prosecutor (an officer of the ministry of justice) whiles the

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party against whom the charges are brought is the accused.

(C) Civil Law and Common Law: Common law refers to the law that has its origin in the
Roman ius civile, having evolved from the commentaries of European scholars on the Justinian
code. The law under this system has always been flexible and persuasive, seeking a well ordered
society through rules that expressed a sense of justice. It gave birth to the natural law school and
with it a more scientific, secular and scholastic approach to the study of law. This system of law
has influenced many jurisdictions in continental Europe, including France, Germany, Spain and
Portugal as well as those countries in which these countries have had political influence in
Africa. Common law on the other hand, describes the law that was developed by the English
courts from the common customs and practices in England. Unlike the civil law system, which
formulates guiding rules in general terms, the primary concern of common law is the resolution
of particular disputes. It is more concerned with the positive law and often lays more emphasis
on procedural rules than substantive law. Precedents are binding and thereby form a major
source of law in the common law system.

(D) Municipal Law and International Law: The term Municipal can be used interchangeably
with national, domestic or local and it denotes the internal law of a particular country. It
embodies all the laws of a country that regulate the relationship between the individuals and
between the individual and the state. So, municipal laws are laws emanating from within a
sovereign country and having force of law within its territory. International law on the other
hand, is the law which governs the relationship between states inter se or between states and
international organization. It is the law that binds respective states and regulates their mutual co-
existence and relationship. The sources of international law include international customary
practices, treaties, bilateral agreements and conventions.

(E) Substantive Law and Adjectival or Procedural Law: Substantive law means the rules of
law themselves. It comprises the rules of law and those legal principles that define the existence
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and extent of a legal right or liability in a particular branch of law. It is concerned with the
creation, definition and limitation of obligation. Procedural law, as described in Atolagbe v.
Awuni, involves the rules by which an action may be brought and disposed of. It prescribes the
method for enforcement of rights and duties and obtaining redress for wrongful invasion of those
rights as well as the enforcement of obligations or duties.

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(F) Customary Law and Non-customary Law: Customary law includes those laws that are
indigenous to the native communities. Customary law is treated as a question of fact that has to
be proved to the satisfaction of the court before it is applied. Furthermore, a rule of customary
law to be valid must pass through the validity tests laid down in the Evidence Act. Non-
customary law is a very wide expression covering the received English law, local statutes and
rules of law derived from judicial precedents. Due to the pre-eminence of local statutes it
overrides all other non-customary and customary law.

(G) Written Law and Unwritten Law: Law may either be written or unwritten. The word
'written' has a technical meaning. It means a rule that has been formally enacted into a legislation
or statute by the legislature. Written laws are usually found in documents. Written laws are
called by different names in different jurisdiction and at various times. They may be called
codes, statutes acts decrees edicts laws rules or ordinances. Unwritten law means two things.
First, it may mean any principle or rule of behavior that is not written down at all. Secondly it
could mean an un-enacted law even if the principles are reduced into writing as is case law. An
example of an unwritten law is the British Constitution.

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171
 UNIVERSITY OF LAGOS

FACULTY OF LAW

LL.B DEGREE EXAMINATION

FIRST SEMESTER, 2015/2016 SESSION

JIL 202: LEGAL METHODS

Time Allowed: 2 hours 30 mins.

INSTRUCTION: ATTEMPT ANY FOUR QUESTIONS

1. „Even though „law‟ is not a legal concept, students of legal studies have always faced the task
of attempting to define. Though it is true that a definition of law has no serious legal
significance, what then is Law?

2. Law is a complex system of formal rules, principles, processes---Law is therefore a means not
an end.

Elucidate on the functions of Law in society

3. Examine the interface of Law and Morality in a Developing Society.

4. Simply stated, the concept of „Natural Law‟ means the „law of nature‟. Discuss.

(Excerpt, „Introduction to Nigerian Legal Method‟, OAU Press Ltd 2000 Abiola Sanni)

5. Write Short notes on the following:

(a) Law and Freedom

(b) Law and Legitimacy

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(c) Law and Sovereignty

6. The doctrine of judicial precedent represents an invaluable tool not only for the judge but also
those who seek legal justice. Discuss.

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 ANSWERS

1. DEFINITION OF LAW

There is no general definition of law. Indeed, definitions of legal terms are often based on the
background or perspective of the person defining the term in question. While different
philosophers have offered different definitions of law according to the particular school of
thought they subscribe to, no single definition has been universally accepted as an all
encompassing definition of law. One writer suggested that the relevance of definitions is just to
please the person defining the term in question. According to Patterson, since any definition of a
term must use other terms and since any definition of those terms must use still others, any
definition must consist ultimately of undefined terms… A good definition is one that is partly
normative, partly conventional and partly real.

Nevertheless, various jurists have attempted to define what law is. Aristotle sees law as
reason without desire. Cicero defines law as the highest reason implanted in nature which
commands what ought to be done and forbids the opposite.

Blackstone is of the opinion that law is a rule of civil conduct prescribed by the supreme
power in a state commanding what is right and prohibiting what is wrong. To Prof. Holland, law
is a general rule of external human actions enforced by a sovereign political authority. To
Hobbes, Law properly is the word of him that by right has command over others. To Goodheart,
law is any rule of human conduct which is recognized as being obligatory. To Wendell Holmes
of the realist school, law is the prediction of what the law will do, while Karl Marx sees law as
the will of the ruling class.

Jeremy Bentham defines law as the assemblage of signs, declarative of a volition

conceived or accepted by the sovereign in a state concerning the conduct to be observed in a
certain case by a certain class of persons who in the case in question are supposed to be subject
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to his power.

Austin bases his definition on the tripod of sovereign, command and sanction. To him, the law
proceeds from an uncommanded commander who monopolizes the use of force to command
obedience. He therefore defines law as the rule laid down for the guidance of an intelligent being

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by an intelligent being having power over him…It consists of commands addressed to a given
group of people and accompanied with a threat of force in case disobedience.

Law consist of multifarious rules, some of which are contained in several sources such as
the constitution, and several other statues and cases decided by the court. Law is man-made
(though not generally accepted) in nature, thus man has the responsibility to determine the
content of the law of his society. If the law is bad or ineffective, man must take the responsibility
and cannot blame God or nature. Law is the legal instrument with which government keeps the
society in an ordered manner and ensures a peaceful relationship between members of the society
and between government and the citizens. Breach of legal rules is usually is usually enforced by
means of sanctions or coercion through organized institutions such as the police force, law
courts, tribunal, prisons etc. Law is not static but law is dynamic. The content of the law of each
society usually changes as the social, political and economic world in which we live in changes.
For example in the past there existed no laws in Nigeria on terrorism, Anti-gay rights etc but as
these things became prevalent it became necessary to create laws to govern these areas. Laws are
usually made to guide the conduct of the people of a particular society or territory and are
binding on the people within that particular society or territory.

Thus, what can be deduced from all these definitions is that law consists of rules of
human conduct prescribing how people ought to behave and backed by sanctions which are
meted out to persons who flout them. Law prescribes how people ought to behave.

2. Functions of Law
The functions of law in a society are numerous as Thomas Hobbes noted life in a society
without laws would be solitary, nasty, brutish and short.

Law therefore plays a key function in each society such as:

a) Maintaining Society Control: In every society there must exist laws which govern the
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relationship of citizens. Where there exist no such laws, there is usually chaos and anarchy.
Therefore the role law plays in maintaining social order cannot be overemphasized. The police
usually serve as the primary law enforcement agency in the society.
b) Resolving Disputes: The occurrence of disputes in any society is inevitable therefore there is
a need for laid down laws which helps in the peaceful resolution of disputes. Law helps to

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establish a formal mechanism for settlement of disputes. Such institutions are usually in the form
of law courts, judicial and administrative tribunals etc. Law also provides for appropriate remedy
where a person has suffered injury due to the action or inaction of another.
c) Protect certainty of systems: Law in a society helps to ensure there exists certainty in the
administration of justice. This function of law is mostly noticed in common law countries were
cases are decided based on judicial precedents. Therefore whenever a dispute arises there exist a
certain amount of certainty as to how such dispute would be resolved.
d) Recognition and Delimitation of Power: The law establishes or recognises specific
institutions, body of persons and individuals and vests in them the authority to excersise certain
power on behalf of the state or other recognised government institution. For instance the
constitution establishes the Legislative (sec.4) , Executive (sec.5) and Judiciary (sec.6) and vest
them with the legislative, executive and judicial power respectively. While in the exercise of
those functions they may sometimes overlap each arm of government is mandated to keep within
the limit of its power subject to the limit of the constitution failing which their action would be
ultra vires.
e) Facilitate Easy Change of Law: one of the characteristics of law is that law is dynamic in
nature i.e. law evolves from time to time to keep up with the sociological and technological
advancement of the society. Therefore it is the function of law to provide for procedures for
changing old rules and provisions of the law. This could take the form of mere subsidiary
legislation such as ministerial order depending on the degree of change to be effected. While
fundamental changes in the law may require new legislation or amendment of the constitution.
Sec.9 of the 1999 const. Contains provisions on amendment of the constitution and sec.58
contains provisions for making new legislation.

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 FIRST SEMESTER, 2013/2014 SESSION

JIL 202: LEGAL METHODS

1. In what ways could you argue that law is capable of serving as an instrument of oppression
and domination? Can you think of examples?

2. S. 914 of the criminal code of Sogal state prohibits the game of soccer in all schools,
playgrounds and public place. This is an effort to encourage the game of basketball in the state
and increase the states chance of becoming a world leader in the sport and win the basketball
competition in December 2014; which holds a Ten million Dollar prize for the best team.
Children and citizens of Sogal are angry because 20 school aged boys have been caught playing
soccer in their school ground were arrested and detained at the local police station. The boys
claim the Headmaster granted them permission to play and had assured them it was OK.

Parents in Sogal state have attended your office and instructed you to appeal to government to
remove this law which they consider to be harsh and unreasonable. What arguments will you
formulate to make the government rescind its decision?

3. Compare and contrast the Natural law school and the positivist school of law.

4. A judge is free to form a decision on his own sense of justice and may not be required to
justify his decision.

5. The determinant of the legitimacy of law has changed over time, Discuss the historical
development of legitimacy with regard to law.

6. Your neighbour has come to you to explain to her how the United Nations Security Council
can make a binding resolution on the Nigerian government when Nigeria is a sovereign state
with sovereign power to make binding laws. Explain to her the relationship between the state,
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sovereignty and the law.

ANSWERS

1. Law as an Instrument of Oppression and Domination

Law can be defined as a rule or body of rules made by institutions, bodies and persons

176
vested with the power to make such rules which are binding and enforced among the members of
a given state or society. While it is irrebuttable that the main function of law in a society is not to
serve as an instrument of oppression or domination. It is however not impossible for this to be
the case.

The relationship between law and social change is complex, even contradictory, and the
perspective adopted matters a great deal. Law can be seen as one of the tools of domination by
the ruling class which, by virtue of its economic power (ownership and control of the means of
production), is able to manipulate institutions within the state, including the police, the courts
and prison system. Law could also be said to exist to support the interest of the party or class that
forms it and is merely a collection of beliefs and prejudices that legitimize the injustice of the
society. The wealthy and the powerful use the law as an instrument for oppression in order to
maintain their place in the hierarchy.

In South Africa before colonialism there existed laws which racially segregated between
black people and other non-European races from white people. These laws made black people
not to have the same economic and political rights as white people as laws where put in place
which restricted where black people lived to the undeveloped areas, the kind of schools black
children attended lacked basic infrastructures also black people were not allowed to proper
health care.

In the past there have existed laws which restricted suffrage to only Adult male members
of the society. Such laws led to domination of women gender by their male counter parts. The
effect of such laws in the past are still reflected till today as politics of most countries are usually
dominated by males. However, most countries have started moving for the emancipation of
women and laws have been passed which kicks against discrimination or oppression of any kind
of the female gender. Nigeria has experienced military rule at different times in the past and one
of the characteristics of laws in the military regime is „suspension and modification of the
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constitution decrees‟. Such decrees have prevented the operation of popular democratic concepts
like separation of powers, rule of law, checks and balances etc. These decrees usually empowers
the military to oppress and dominate members of the society etc

In Nigeria, it‟s not unusual to see double standards in the application of justice as while

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the law is strict against stealing to the poor and middle class in the society, it‟s not surprising to
see the rich and influential let of the hook lightly for similar offences. An instance in point was
when the former director of police pension Mr. John Yusuf who connived with others to defraud
the officers and pensioners of 27.2billion (naira) was only fined 750,000(naira).

Law can is thus capable of serving as an instrument of oppression and domination when
its discriminatory against any particular race or gender of the society and also when it‟s not
scrupulously applied to all the citizenry both high and low.

In conclusion the legislation should ensure in its business of making laws such laws should
not be used to defeat the aim for which they were made.

2. In the case of Hedley Byrne v. Heller (1964) Lord Delvin declared that “No system of laws
can be workable if it has not got logic at the root of it”.

The laws of a state are meant to reflect the culture and yearnings of the people as the law
makers who make such laws are only the representatives of the people. Murder is not a crime
because the law makers say it is but because there is a general revulsion against taking of another
person‟s life so it automatically becomes the culture of the people that there should be great
respect for the protection and sanctity of life.

A law which is made which is not recognised by the people and which does not reflect the
life style of the people cannot be enforced. For example while the criminal code of Nigeria
prohibits against Bigamy, but due to the fact that the African culture supports polygamy there
exist little or no judicial activities in relation to the offence of bigamy.

While it is admirable the government of sogal have positive intentions to strategically

place the state of sogal on the world map as a power house in the game of basketball, the ripple
effect of prohibiting the game of soccer which is a popular sport among the people of sogal is
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unacceptable.

The government of sogal should realise there exist different variety of sports while some are
team sports others are individual sports therefore it would be illogical that prohibition of one
sport would invariably lead to an increase participation in another sport.

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 The importance of children participating in team sports from a tender age cannot be over
emphasized as it increases togetherness; helps build team responsibility and help them learn how
to look out for one another in order to achieve their goal of winning. While both soccer and
basketball are team sports, there is more participation in a game of soccer as to play a
professional game requires two teams of 11 players while basketball requires two teams of 5
players.

In order to be good at a sport, the choice of participating in it should come naturally from
sheer admiration of the sport and not when one is forced to participate in that sport. Michael
Jordan who happens to be one of the greatest basketball players ever wasn‟t great because he was
forced to play basketball but because he had passion and was hardworking at the sport.

A viable alternative to increasing participation in basketball instead of out rightly

forbidding the playing of soccer is to grant incentives to children as this would help stimulate the
children‟s interest. Cash prizes and scholarships should be given to children who distinguish
themselves in the sports.

Basketball schools and camps can also be set up and scouts sent out to recruit the best kids in the
sports where they would also have access to qualitative education while undergoing training.

I would also like to use the opportunity to plead for the release of the 20 aged school boys
who have been arrested for playing soccer. Being school aged boys who have flouted laws i
think there exist better corrective measures which could be adopted instead of detaining them.
Also, since the boys have pleaded that they sought the approval from their headmaster i suggest
their headmaster be called in for questioning.

3. Comparism and Contrast of the Natural Law School and the Positivist School of Law

Natural law and human or positive law are two of the several generally accepted theories
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concerning the origin of law. A theory is a comprehensive explanation concerning some aspects
of how society works, it governs the way a social phenomenon is seen and understood.

Natural law means what is „fair‟, „just‟, „right‟. The protagonists of natural law theory hold
that there are certain objective principles in every man no matter his race or colour telling him
what is „fair‟, „just‟, „right‟, motivating him to do what is good and abstain from what is evil.

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Natural law started from ancient Greece, where philosophers were anxious to know the reason
behind man‟s action. Questions were raised by major philosophers like Plato, Aristotle, Thomas
Aquinas etc on the true origin and reason behind laws, but the only answer they could come up
with is that laws were based on transcendental rules that were passed on by God therefore there
were particular laws that could not be legislated upon.

Human or positive law refer to man-made laws. These are the laws which are imposed to
govern human affairs or a particular situation by the rulers. The protagonists of positive law hold
that laws are the rules promulgated by the sovereign irrespective of its morality.

The chief protagonist of this theory John Austin propounded his “command theory of law”
where he defines law as a command set by a superior bring to an inferior being and enforced by
sanctions. In his view law should consist of a tripartite formular ie A superior being, an inferior
being, command coupled with sanctions.

The sovereign commands the activites of his subject through the rules he proclaims and in
Austin‟s view sovereignty in the society rests in the sovereign who is the uncommanded
commander.

Contrasting between Positive and Natural law

 Natural law posits that law is valid based on their moal backing i.e for a law to be valid it
should agree with morality, positive law posit that laws are valid based on the authority
they are derived from.

 While natural law school believe that every law should have some morality in it, positive
law are not concerned with morals but the process of law derivation and its legitimacy by
formal means.

 Positive law proponents believe international law cannot be regarded as „law‟ because it
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does not fall under their perception of what law is since in an international setting,
nations were regarded as sovereign states and there exist no sovereign commander.
Natural law believe international law is law in so far as it complies with morality.

In modern times because of the legislation on those areas of law that we feel are

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transcendental, the relationship between natural law school and positivism have become stronger
as there have been efforts to legislate on natural law rules and principles and give them a positive
outlook. Therefore countries have made an attempt to entrench principles like fundamental
human right and non-discrimination in a bill of right. However there still exist some clashes in
some areas of law like the debate for or against homosexuality, abortion, gay rights etc.

4 Extent to which a Discretionary Powers of a Judge can be Exercised

A judge is a person who has the power to make decisions on cases brought before a court of law.
When a case comes before the court, the judge will have to resolve the conflicting interest of the
parties and that of the society by coming to a decision in form of a judgement or ruling.

In forming his decision a judge would usually be influenced in varying degrees by

different factors such as the probative value of the evidence provided; the rhetoric and the
logicality of the argument of the counsel to the parties and how compactable those positions are
with established legal standards and principles. In giving his judgement the judge will have to
justify his decision in a reason judgement as this would serve as the ratio decidendi of the case.

Until about the last two and a half decade, „appeal to authority‟ could be said to be the
strongest justification that a judge could advance in support of his decision. Thus once the
applicable judicial and statutory authority are cited, the judge would be bound to adopt the
position of the party citing the authority. However nowadays the judge is more willing to
recognize the prevailing factors that appeal to his sense of justice like;

1. The extent to which a proposed decision will cohere with the existing principles and
authorities. The greater the inconsistency with the existing principle and authorities the
less likely it will be adopted.

2. The consideration of the question whether the consequence of the decision will be
January 1, 2017

acceptable in terms of justice

3. Judge may refer to common sense and the supposed view of a reasonable man

4. Public Policy; this involves justification in the larger context of public good.

In conclusion it can be seen that a judge is more likely to form a decision which appeals to

181
his sense of justice and is not inconsistent with existing principles. The courts are now more
poised to achieve justice instead of granting victories flowing from technicalities as was strongly
put forward in the court in Chinwendu v Mbamali

5 The Historical Development of Legitimacy with Regard to Law

When we speak of legitimacy we are talking about authority i.e where does a law derive its
authority and validity.

There are different ways a law can derive its legitimacy;

 The Constitution: This is the grund norm in the society. Section 1(3) provides that
anything that is inconsistent with the constitution lacks validity.

 International Law- A state can derive its legitimacy from international law. Where a
country is a signatory to a treaty and it incorporates such treaty into its law. For Instance
in Nigeria Section 12 provides for domestication of a foreign treaty.

 English Law- A law may derive its legitimacy from English law. Even though presently
the English parliament no ;longer makes law for Nigeria but the high court rules provide
that where the law is silent in relation to a particular subject matter the court is to follow
the English law „for the time being applied‟.

Historical Bases/ Determinant of Legitimacy.

-Charisma of the Ruler/King: In the past, anybody occupying the position of a ruler or king
had a charisma in such a way that anything he said was regarded as legitimate. Based on the
charisma of the ruler whatever he said was binding.

However, today charisma is no longer a bases of measuring legitimacy of law. An example of

charisma is how common law was formed whereby Judges who made decisions in place of the
January 1, 2017

king where seen as an embodiment of that is lawful and whatever they said during their
adjudication of disputes were final.

-Tradition/custom: There exist two components of custom i.e. Behaviour and Acceptance. This
can be seen as a ripple effect of the king‟s charisma. Rules made by the king where no longer

182
seen as legitimate because of the charisma for the king but because the people have behaved in
that way for a particular period of time. This was now seen as the generally acceptable way of
behaviour.

-Rationalty: Rationality can be divided into two. According to Mark Webber rationality in law
can be divided into Logic and Ideology.

Logic refers to an intellectual component. We try to answer whether a law should be a law
and if the question is answered in the positive by a reasonable man then such law is logical.
Ideology refers to our moral values. In the society presently lots of debate bothers on the logic
and ideology behind rules in relation to abortion, euthanasia, gay rights etc

In conclusion, the concept of legitimacy is one which has changed over time due to the
development of the society. From charisma to rationality the determinants of legitimacy
continues to evolve.

6 The Relationship between the State, Sovereignty and the Law

According to the Montevideo Convention of 1993 “A state for the purposes of international law,
is a territorial unit, containing a stable population under the authority of its government, and
recognised as being capable of entering into relation with other entities with international
personality”.

Sovereignty in relation to law is the supreme power to make law. Historically sovereignty has
not always been in the realm of the state but it existed in other powers. Sovereignty in relation to
the state can be traced back to 1648 after the war. Before then sovereignty was in God
represented through secular authorities like the Pope, Bishop etc. Before the rise of the church,
sovereignty resided in the Roman emperor. After 1648 peace treaties were signed and this led to
the creation of states. Jean Bodin a French writer introduced the doctrine of sovereignty into the
January 1, 2017

western political theory. As society progressed, several theories have been developed on how to
curtail the power of those authorities, such as theories of social contract, separation of power,
rule of law etc.
Until the creation of modern states in the 17th century, sovereignty was absolute. However
sovereignty is no longer absolute because a state operates in an international community

183
consisting of other states. Also it has to fulfil agreements and treaties freely entered into and
abide by laid down rules. Article 21 of the United Nations charter provide that “All state are
sovereign equals” as a sovereign state. Nigeria is a sovereign state in the international
community and a member of different regional and international organizations such as the
Economic community of West African state (ECOWAS), common wealth of nations and also the
United Nations.Nigeria has the power to govern, to make laws, to make sanctions within its
territory and to enforce those laws and sanctions domestically which is „internal sovereignty‟.
Nigeria also has the power to regulate its domestic activities without interference from any other
state or international organization which is „external sovereignty‟. However Nigeria‟s internal
sovereignty is not absolute because within the context of the constitution and international law
there is a limit to what a sovereign can do.

In recent times sovereignty resides under democracy is vested in the people section
14(2). The people empower the elected representatives to exercise these powers for them.
There are two types of sovereignty;
1. Internal sovereignty- This is the power of a sovereign to govern, make laws and to
sanction erring citizens within its political unit.
2. External Sovereignty- This refers to the power of a state to regulate its domestic activities
without interference. It is also known as Negative sovereignty.

International law limits a sovereign because as a member of an international community

there exist laws which stipulate the kind of laws that can exist in a state. Such international laws
exist in forms of resolutions which are agreement which sovereign nations have agreed upon as
solutions to a particular problem they are experiencing.

Even though Nigeria is a sovereign nation as a signatory of the United Nations charter,
Nigeria has limited its sovereignty, as a result of which, Nigeria would be bound by the
resolutions of any arm of the United Nations including the Security Council. The Security
January 1, 2017

Council is the arm of the United Nations which has the responsibility of maintaining
international peace and security in accordance with the principles and purposes of the United
Nations and also to investigate any dispute or situation which might lead to international friction.

184
 However it should be noted that the term „resolution‟ has a generic sense which could mean
either „decisions‟ for binding resolutions or „recommendations‟ for non binding resolution.

When a sovereign state has not complied with the binding resolutions of the Security
Council the state would be charged before the international court of justice which would have the
final say as to whether the state complied with the resolution or not, if the latter is the case, such
state would be awarded appropriate sanctions.

In conclusion the sovereignty of Nigeria doesn‟t provide it the platform to behave as she
likes in the international community as there exist laid down rules which are meant to ensure the
peaceful co-existence of states so that there won‟t be a reoccurrence of world wars.

January 1, 2017

185
 FIRST SEMESTER 2011/2012

LEGAL METHODS

1. Outline the various techniques of social control through law and briefly explain any of three
of them.

2. The essence of law is order not justice. Discuss

3. Write short notes on any two of the following.

i. Law and sovereignty

ii. Law and the state

iii. Law and language

iv. Law and Legitimacy

v. The Historical school of Law

4. Discuss the process of reasoning within the judicial process

5. Discuss the elements of legislative drafting

6. Discuss, with case law examples, the distinguishing features of a question of law and a
question of fact.

ANSWERS

1. Social control was used by American sociologist Edward .A. Ross to refer to certain
legislative institutions which function to ensure that individual behaviour is in conformity with
group demands. According to Otite and Ogionwo it refers to those various means (or
January 1, 2017

mechanisms) by which a society exercises its authority over its members and enforces
conformity to its norms.

In simple terms however, social control is basically the means of prescribing and
proscribing behaviour, setting rules and customs that show how people should behave.

186
 The methods of social control are established to regulate the conduct of various groups in a
society, as it is in an atmosphere of social order that human effort to harness all potentials for
development can be rewarded. It is trite that no meaningful development can be undertaken in an
atmosphere devoid of orderliness.

Robert. S. Summers identified the five basic techniques used in social control and
Professor J.H Farrar and Anthony Dugdale have added two other techniques.

 The Penal Technique

 Grievance Remedial Technique

 Private Arranging Technique

 The Constitutive Technique

 The Administrative Regulatory Technique

 The Fiscal Technique

 Public Benefit Conferral Technique

1) Penal Technique: This is a technique that sets penalty for carrying out certain offences. The
penal technique spells out conducts which are prohibited, the penalty for breach the procedure
for determining the guilt of those who violate the rules and the most appropriate punishment. The
penal technique is mostly utilized in relation to criminal offences. It is enforced by the state
through the agent of the police.

Thus the penal technique is a way or method the state tries to determine people‟s behaviour not
only by punishing offenders but also to serve to deter people from engaging in certain
behaviours.
January 1, 2017

2) Grievance Remedial Technique: Professor Summer explains the grievance remedial

technique as one which “defines remediable grievances, specifies remedies.....and provides for
enforcement of remedial awards”. This technique has to do with people taking responsibility for
what they have done. It is mostly found in civil cases. So it is not the state that‟s punishing the
commission of certain offences but private persons seeking remedy for grievances against them.

187
The idea is not to punish people but to seek compensation for the damages occasioned by their
act. It is brought in private capacity and it is about restoring and compensating people for their
loss.

3) Private Arranging Technique refers to a system whereby the laws provide a framework of
rules which would determine the validity of private transactions leaving it to the individual to
make an option of arranging his affairs within that framework.

There exist laws which are set to govern different aspects of life such as marriage, making
of will, adoption etc. So whenever an individual intends to undertake a transaction in any of
these areas, he must comply with the rules which would give his action validity.

This technique is mostly seen in civil law for example in marriage, where two people
privately agree to live together the law has prescribed formal steps in order to make their private
arrangement recognised under law.

2. The Essence of Law is Order not Justice

Law is a rule or body of rules made by institutions bodies and persons vested with the power to
make such rules which are binding and enforced among the members of a given state or society.
According to Thomas Hobbes life in a society devoid of law is solitary, nasty, brutish and short.
Citizens would be free to take up arms against one another. Law seeks to ensure the smooth and
effective running of government. The main function of law in a society is to make it cohesive i.e
law helps to bind the society together.
The primary reason for law in any society is to maintain order. Law must enforce order
for the well being of the society through its agents like the police. When there is a law but people
do not recognise such law, it becomes ineffective (law against bigamy in Nigeria).
The opposite of order is anarchy and chaos. Even in times of war, law still has a basic
role to play in ensuring certain minimum standard of rules of behaviour are maintained by
January 1, 2017

warring parties. For instance certain rights are accorded to civilian entities such as religious
houses and vulnerable groups of people such as the aged, pregnant women, children and
members of relief agencies such as the United Nations organization, Red Cross etc.
To achieve the primary function of law which is to maintain order, law must be
administered without fear or favour to all classes of citizens in the society.

188
 Justice is a word that is controversial because it means different things to different
people. Some see it as mere‟ judicature‟, others however see it as „fair trial‟, others still as
„equality‟ and some as „morality‟. In ordinary parlance, law and justice are synonymous;
however, justice is the correct application of a law as opposed to arbitrariness. Law seeks justice;
law is therefore not an end in itself but a means to achieving justice.
As was earlier noted, the word justice means different things to different people as many
factors contribute to the moulding of one‟s conception of justice such as home background,
educational qualification, religious beliefs, enlightened self-interest etc.
The problem is further complicated by the fact that the society cannot devise rules of law
that will satisfy the often competing and conflicting demands of everyone at all time.
Aristotle states that the way to measure justice is that same should be treated alike, it is however
not possible to treat everyone in the same manner.
It can thus be concluded that the primary role plays in a society is to ensure an ordered
society and not to satisfy everyone‟s concept of justice as what is just to one might not be to
another.

3 (i) Law and Sovereignty

Sovereignty in relation to law is the supreme power to make law. Historically sovereignty has
not always been in the realm of the state but it existed in other powers. Sovereignty in relation to
the state can be traced back to 1648 after the war. Before then sovereignty was in God
represented through secular authorities like the Pope, Bishop etc. Before the rise of the church,
sovereignty resided in the Roman emperor. After 1648 peace treaties were signed and this led to
the creation of states.
Until the creation of modern states in the 17th century, sovereignty was absolute. However
sovereignty is no longer absolute because a state operates in an international community
consisting of other states. Also it has to fulfil agreements and treaties freely entered into and
abide by laid down rules. Article 21 of the United Nations Charter provides “All states are
January 1, 2017

sovereign equals”.
Jean Bodin a French writer introduced the doctrine of sovereignty into the western political
theory. As society progressed, several theories have been developed on how to curtail the power
of those authorities, such as theories of social contract, separation of power, rule of law etc.
In recent times sovereignty resides under democracy is vested in the people section 14(2).

189
The people empower the elected representatives to exercise these powers for them.
There are two types of sovereignty;
2. Internal sovereignty- This is the power of a sovereign to govern, make laws and to
sanction erring citizens within its political unit.
2. External Sovereignty- This refers to the power of a state to regulate its domestic activities
without interference. It is also known as Negative sovereignty.

(ii) Law and the State

Like the concept of Law there are several concepts of a state. A state can be defined as a
territorial unit containing a stable population, under the authority of its government with the
sovereignty to control its affairs. Thus the features of a state can be identified as;
 Territory: This refers to a land mass with a boundary within which to determine the
geographical location of such state.
 Population: That is the number of people living within the territory.
 Government: Refers to the machinery for the administration of a state.
 Sovereignty: The supreme power of a state to make law and to control its affairs without
interference.
The role law plays in a stste is to to define the political structure and organization of a
state for example Section 2(1) of the 1999 constitution of Nigeria, and to ensure a peaceful and
ordered society.
Law also defines the extent of the power of each organ of government and regulate their
interrelationship with each other. If an organ of government exceeds the scope of its power, the
purported exercise of power would be declared null and void and of no effect.
A state should be able to offer security, economic empowerment, shelter, education for
the citizens through prudent use of the resources by government officials.

(iii). Law and Language

January 1, 2017

Language in relation to law does not mean „lingua‟ but rather the combination of words,
phrases etc for the purpose of communication. Language is the vehicle for carrying thoughts and
reasoning. Words on its part have been defined as the components and spare parts of language.
According to M.P Golding, language is of special interest to a lawyer because they are
the tool of his trade. Law is usually but not invariably worded in general language form. The

190
main reason that informed the expression of law in general terms is the realization that any law
made will apply to a wide spectrum of people in different circumstances. Lawyers are not free to
use words anyhow unlike the scientist who can give a name to what he discovers, the lawyer has
to use the words already in use.
Law is not restricted to a particular type of language; it is common to see French and
Latin words mixed in English sentences. Such words include „consensus ad idem‟, „ultra vires‟
„nemo dat quad no habet‟. It should however be noted that has moved away from the compulsory
use of Latinised phrases in forensic practice.
Also in legal practice, the lawyer most times uses common words with uncommon
meaning. For instance, while a layman would say he has a case in court a lawyer will say he has
a matter or suit.
In conclusion the importance of language in law cannot be overemphasized as language
remains the medium in which law is expressed and the vehicle for conveying a lawyer thought
and reasoning.

(iv) The Historical Development of Legitimacy with Regard to Law

When we speak of legitimacy we are talking about authority i.e where does a law derive its
authority and validity.

There are different ways a law can derive its legitimacy;

 The Constitution: This is the grund norm in the society. Section 1(3) provides that
anything that is inconsistent with the constitution lacks validity.

 International Law- A state can derive its legitimacy from international law. Where a
country is a signatory to a treaty and it incorporates such treaty into its law. For Instance
in Nigeria Section 12 provides for domestication of a foreign treaty.
January 1, 2017

 English Law- A law may derive its legitimacy from English law. Even though presently
the English parliament no ;longer makes law for Nigeria but the high court rules provide
that where the law is silent in relation to a particular subject matter the court is to follow
the English law „for the time being applied‟.

Historical Bases/ Determinant of Legitimacy.

191
-Charisma of the Ruler/King: In the past, anybody occupying the position of a ruler or king
had a charisma in such a way that anything he said was regarded as legitimate. Based on the
charisma of the ruler whatever he said was binding.

However, today charisma is no longer a bases of measuring legitimacy of law. An example of

charisma is how common law was formed whereby Judges who made decisions in place of the
king where seen as an embodiment of that is lawful and whatever they said during their
adjudication of disputes were final.

-Tradition/custom: There exist two components of custom i.e. Behaviour and Acceptance. This
can be seen as a ripple effect of the king‟s charisma. Rules made by the king where no longer
seen as legitimate because of the charisma for the king but because the people have behaved in
that way for a particular period of time. This was now seen as the generally acceptable way of
behaviour.

-Rationalty: Rationality can be divided into two. According to Mark Webber rationality in law
can be divided into Logic and Ideology.

Logic refers to an intellectual component. We try to answer whether a law should be a law
and if the question is answered in the positive by a reasonable man then such law is logical.
Ideology refers to our moral values. In the society presently lots of debate bothers on the logic
and ideology behind rules in relation to abortion, euthanasia, gay rights etc

In conclusion, the concept of legitimacy is one which has changed over time due to the
development of the society. From charisma to rationality the determinants of legitimacy
continues to evolve.

(v) The Historical School of Law

The Historical school of thought started in the 17th and 18th century Europe to counter the wide
January 1, 2017

spread of Natural law school. According to the Historical school of thought there is what is
called the spirit of the people, volkgeist which binds the people of a particular society together
and distinguishes them from any other people. For instance a Nigerian has a „national spirit‟ like
the National anthem, pledge, National flag which makes him think that he is a Nigerian and not a
Ghanaian. Accordingly before a law is made for a society there must be a good understanding of

192
the history of the people. In essence, for a law to be valid, it must accord with the history and the
way of life of the people, i.e their customs. Major proponents of the Historical school of thought
include: Friedrich Carl von Savigny, Gustavo Hugo etc

The Historical school of thought is concerned with how the law has evolved over time in
relation to the historical backdrop of the people as opposed to what is fair, natural and just.
According to this theory, law should be a formal restatement of the customs prevalent in the
society. This is because customs usually evolve over time through informal enforcement
processes until they become part of everyday life. It is therefore difficult if not impossible to
change the customs of the society except the generality of the people are in tune with the change.

The theory that law originates or should originate from customs is based on the assumption
that the rules of customary law are rational or fair. This does not necessarily follow in practice.
Some customary rules have been used to subject some class of people to the status of servitude,
prejudice women in inheritance and labour matters. The Historical school tends to give the
impression that it is the past and not the will and objectives of a society that determines its law
and future. If the theory were to be followed dogmatically, it may hinder the establishment of
some desirable radical reforms, which may transform the society for the better.

4. Elements of Legislative Drafting

The 1999 constitution of Nigeria under section 4(1) and section 4(6) vest legislative powers at
the federal and state level on the national assembly and the state houses of assembly respectively.
It is thus the function of the houses to make laws at both the federal and state level.

Before a law is passed according to the provisions of section 58, It originally exist as a
bill. What is eventually passed into law more often than not is not radically different from but
rather a modified version of the bill. Thus the drafting of a bill requires a serious technical input
or expertise by the legal draftsman such as;
January 1, 2017

 Mastery and familiarity of Language- section55 provide that the business of the National
Assembly shall be conducted in English and in Hausa, Ibo and Yoruba. However due to
cultural plurality in Nigeria and the existence of diverse languages, it has been
sufficiently recognised that legislative debate and other business cannot be done in any

193
 language apart from English.

 Direct and Explicit Expression- The drafts man should try as much as possible to be
direct and unambiguous. Hence, clumsy intricate and complex expressions should not be
used which would cloud the intentions of the draftsman.

 Economy of Language- The draftsman should try not to be verbose through undue
repetitions of synonyms in order to impress. He should however try to be breve and not
use redundant terms or words which would fail to advance the meaning of the issue he
wishes to put across.

 Orderliness- There is no specific rule on how the provisions of a statue should be

arranged, however proper delineation into well trimmed sections and paragraphs make
the law easy to follow and its scope of applicability easily determined.

 Archaism- It was common practice in the past for the legal draftsmen and lawyers to
overwhelm the laymen at large with big complicated language with little meaning such as
hereinafter, hereinbefore, foregoing, first above written etc. However, it seems evident
that when these words are left out, no damage is done to the sense or meaning of the text.
Thus, a draftsman should not form the habit of using archaic or vague words which have
been made trite by overuse and with no content value in the draft.

 Consistency of Terms- In writing a draft, the draftsman has a wide range of words, tenses
and writing styles to choose from, he should however try to stick to the particular words
or tenses with which he started the drafts in order to avoid confusion. For instance a
draftsman may either choose to use “lessor” or “Landlord” in a draft but he should not
use them interchangeably.

 Use of connective and definitive words- These terms are very sensitive and the draftsman
January 1, 2017

must know the implication of using them and the meanings attributable to them in law
particularly by law courts. Some of them assume more meaning than their ordinary
meaning in everyday language when they form part of a legal text. For instance “will”
and “shall” depending on their context may indicate a discretion, an obligation or
command by one person or body to do certain things.

194
  Punctuation- A good draftsman should pay particular attention to the use of his
punctuation as wrong punctuations can alter the meaning of a paragraph. Punctuations are
widely accepted at common law and by judicial authorities to be part of statues and are
taken into consideration when construing an enactment.

Marginal notes, schedules etc- A draftsman should also use marginal notes as they serve to direct
attention to places or clauses sought in a statue. More like a bookmark for ease of reference in a
statue. Schedules are to be used for more elaborate, technical or more explicit information which
could not be conveniently included in the main text of the legislation.

January 1, 2017

195
 FIRST SEMESTER, 2010/2011 SESSION

JIL 202: LEGAL METHODS

Time Allowed: 2 hours 30 mins.

INSTRUCTION: ATTEMPT ANY FOUR QUESTIONS

1. Compare and contrast the Historical school of law with the sociological school of law

2. Outline the various techniques of social control through law and briefly explain any three of
them

3. State and discuss the functions of law

4. Distinguish between the Law and Justice and explore the various ways by which the term
Justice is used.

5. Lawyers represent the interest of their clients and their function, therefore, is to persuade the
court to accept their point of view. The judge, on the other hand, is seeking to arrive at and
rationalize and justify his decision.

6. Write short notes on any three of the following

i Law and freedom

ii Law and the state

iii Law and legitimacy

iv Law and sovereignty

v Evolution of the law

January 1, 2017

ANSWERS

1. A Comparism and Contrast of the Historical School of Law with the Sociological School
of Law

Historical and Sociological school of thoughts are two of the generally accepted theories on

196
the phenomenon of law. A theory is a comprehensive explanation concerning some aspects of
how society works, it governs the way a social phenomenon is seen and understood.

The Historical school of thought started in the 17th and 18th century Europe to counter the
wide spread of Natural law school. According to the Historical school of thought there is what is
called the spirit of the people, volkgeist which binds the people of a particular society together
and distinguishes them from any other people. For instance a Nigerian has a „national spirit‟ like
the National anthem, pledge, National flag which makes him think that he is a Nigerian and not a
Ghanaian. Accordingly before a law is made for a society there must be a good understanding of
the history of the people. In essence, for a law to be valid, it must accord with the history and the
way of life of the people, i.e their customs. Major proponents of the Historical school of thought
include: Friedrich Carl von Savigny, Gustavo Hugo etc

The Historical school of thought is concerned with how the law has evolved over time in
relation to the historical backdrop of the people as opposed to what is fair, natural and just.
According to this theory, law should be a formal restatement of the customs prevalent in the
society. This is because customs usually evolve over time through informal enforcement
processes until they become part of everyday life. It is therefore difficult if not impossible to
change the customs of the society except the generality of the people are in tune with the change.

The theory that law originates or should originate from customs is based on the assumption
that the rules of customary law are rational or fair. This does not necessarily follow in practice.
Some customary rules have been used to subject some class of people to the status of servitude,
prejudice women in inheritance and labour matters. The Historical school tends to give the
impression that it is the past and not the will and objectives of a society that determines its law
and future. If the theory were to be followed dogmatically, it may hinder the establishment of
some desirable radical reforms, which may transform the society for the better.
January 1, 2017

The Sociological school of thought rose to prominence from mid- nineteenth century into
twentieth century. Proponents of the school of thought posit that there is a relationship between
law and conduct and that each affected the other. However, the society conduct determines the
rule laid down in legal sources such as statues and decided cases. Therefore, it is the society‟s
values and conduct, which determine what the law is and not the rules laid down by the

197
sovereign. Proponents of the sociological school believe for a law to be an instrument of social
control, it must be in consonance with popular conduct and the law is not unsupported.

The most prominent of the European Sociological Jurisprudents was Eugene Ehrlich, his
analysis was that one could not know the law of the society by merely reading through the
formal legal sources, rather, one should go to the society to appraise how that law is obeyed,
ignored, executed, or supplemented by the society. In his words “T he centre of gravity of legal
development lies neither in the legislation nor juristic science nor in judicial decisions but the
society itself.”

Careful consideration of both school of thought reveals that they both believe that a law
should be a law because it reflects how the people has lived or lives presently and not because it
is fair or just or because it was handed by a sovereign to be imposed with sanctions.

They also agree that laws should be manmade tailored to represent how the people live and
not handed down by a supernatural being.

2 Techniques of Social Control through Law

Social control was used by American sociologist Edward .A. Ross to refer to certain
legislative institutions which function to ensure that individual behaviour is in conformity with
group demands. According to Otite and Ogionwo it refers to those various means (or
mechanisms) by which a society exercises its authority over its members and enforces
conformity to its norms.

In simple terms however, social control is basically the means of prescribing and
proscribing behaviour, setting rules and customs that show how people should behave.

The methods of social control are established to regulate the conduct of various groups in a
society, as it is in an atmosphere of social order that human effort to harness all potentials for
January 1, 2017

development can be rewarded. It is trite that no meaningful development can be undertaken in an

atmosphere devoid of orderliness.

Robert. S. Summers identified the five basic techniques used in social control and
Professor J.H Farrar and Anthony Dugdale have added two other techniques.

198
  The Penal Technique

 Grievance Remedial Technique

 Private Arranging Technique

 The Constitutive Technique

 The Administrative Regulatory Technique

 The Fiscal Technique

 Public Benefit Conferral Technique

i) Penal Technique: This is a technique that sets penalty for carrying out certain offences. The
penal technique spells out conducts which are prohibited, the penalty for breach the procedure
for determining the guilt of those who violate the rules and the most appropriate punishment. The
penal technique is mostly utilized in relation to criminal offences. It is enforced by the state
through the agent of the police.

Thus the penal technique is a way or method the state tries to determine people‟s behaviour not
only by punishing offenders but also to serve to deter people from engaging in certain
behaviours.

ii) Grievance Remedial Technique: Professor Summer explains the grievance remedial
technique as one which “defines remediable grievances, specifies remedies.....and provides for
enforcement of remedial awards”. This technique has to do with people taking responsibility for
what they have done. It is mostly found in civil cases. So it is not the state that‟s punishing the
commission of certain offences but private persons seeking remedy for grievances against them.

The idea is not to punish people but to seek compensation for the damages occasioned by their
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act. It is brought in private capacity and it is about restoring and compensating people for their
loss.

iii) Private Arranging Technique refers to a system whereby the laws provide a framework of
rules which would determine the validity of private transactions leaving it to the individual to
make an option of arranging his affairs within that framework.

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 There exist laws which are set to govern different aspects of life such as marriage, making
of will, adoption etc. So whenever an individual intends to undertake a transaction in any of
these areas, he must comply with the rules which would give his action validity.

This technique is mostly seen in civil law for example in marriage, where two people
privately agree to live together the law has prescribed formal steps in order to make their private
arrangement recognised under law.

3. Functions of Law

Many questions have been asked with such persistence and answered in different ways as the
question “what is law? While different philosophers have offered different definitions of law
according to the particular school of thought they subscribe to, no single definition has been
universally accepted as an all encompassing definition of law.

For the sake of a working definition, law can be defined as a rule or body of rules made
by institutions, bodies and persons vested with the power to make such rules which are binding
and enforced among the members of a given state or society.

Law consist of multifarious rules, some of which are contained in several sources such as
the constitution, and several other statues and cases decided by the court. Law is man made in
nature, thus man has the responsibility to determine the content of the law of his society. If the
law is bad or ineffective, man must take the responsibility and cannot blame God or nature.
Law is the legal instrument with which government keeps the society in an ordered manner and
ensures a peaceful relationship between members of the society and between government and the
citizens. Breach of legal rules is usually is usually enforced by means of sanctions or coercion
through organized institutions such as the police force, law courts, tribunal, prisons etc.

Law is not static but law is dynamic. The content of the law of each society usually
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changes as the social, political and economic world in which we live in changes. For example in
the past there existed no laws in Nigeria on terrorism, Anti-gay rights etc but as these things
became prevalent it became necessary to create laws to govern these areas.

Laws are usually made to guide the conduct of the people of a particular society or
territory and are binding on the people within that particular society or territory. The functions of

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law in a society are numerous as Thomas Hobbes noted life in a society without laws would be
solitary, nasty, brutish and short.

Law therefore plays a key function in each society such as:

1. Maintaining Society Control: In every society there must exist laws which govern the
relationship of citizens. Where there exist no such laws, there is usually chaos and anarchy.
Therefore the role law plays in maintaining social order cannot be overemphasized. The police
usually serve as the primary law enforcement agency in the society.

2. Resolving Disputes: The occurrence of disputes in any society is inevitable therefore there is
a need for laid down laws which helps in the peaceful resolution of disputes. Law helps to
establish a formal mechanism for settlement of disputes. Such institutions are usually in the form
of law courts, judicial and administrative tribunals etc. Law also provides for appropriate remedy
where a person has suffered injury due to the action or inaction of another.

3. Protect certainty of systems: Law in a society helps to ensure there exists certainty in the
administration of justice. This function of law is mostly noticed in common law countries were
cases are decided based on judicial precedents. Therefore whenever a dispute arises there exist a
certain amount of certainty as to how such dispute would be resolved.

4. Recognition and Delimitation of Power: The law establishes or recognises specific

institutions, body of persons and individuals and vests in them the authority to excersise certain
power on behalf of the state or other recognised government institution. For instance the
constitution establishes the Legislative (sec.4) , Executive (sec.5) and Judiciary (sec.6) and vest
them with the legislative, executive and judicial power respectively. While in the exercise of
those functions they may sometimes overlap each arm of government is mandated to keep within
the limit of its power subject to the limit of the constitution failing which their action would be
ultra vires.
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5. Facilitate Easy Change of Law: one of the characteristics of law is that law is dynamic in
nature ie law evolves from time to time to keep up with the sociological and technological
advancement of the society. Therefore it is the function of law to provide for procedures for
changing old rules and provisions of the law. This could take the form of mere subsidiary

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legislation such as ministerial order depending on the degree of change to be effected. While
fundamental changes in the law may require new legislation or amendment of the constitution.
Sec.9 of the 1999 const. Contains provisions on amendment of the constitution and sec.58
contains provisions for making new legislation.

4. Distinction Between Law and Justice

In ordinary parlance, law and justice are synonyms. However, justice is the correct
application of a law, as opposed to arbitrariness. Laws seek justice. Law is therefore not an end
in itself, but a means to achieving justice

Law can be defined as a rule or body of rules made by institutions, bodies and persons
vested with the power to make such rules which are binding and enforced among the members of
a given state or society. Justice, on the other hand, is a word that is controversial because it
means different things to different people. Justice can however be defined as the constant and
perpetual disposition to render every man his due. According to Aristotle, the way to measure
justice is that same should be treated alike. However in reality, it is not possible to treat everyone
in the same manner as different factors affect justice standards such as: Position in the society
(immunity for certain elected officers like President, Governor), Economic resources (it‟s a
rebuttable presumption than in Nigeria justice is sold to the highest bidder), Influence and
connections etc

Law is however an instrument of coercion which Government uses to ensure a peaceful

and ordered society. Law is used to regulate the relationship of citizens between on another and
between government and the citizens. Law punishes offenders who act contrary to the rules laid
down in a society and ensures a person receives damages for the loss occasioned by the acts or
inactions of another.

As earlier stated the word justice means different things to different people as many
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factors contribute to the moulding of one‟s concept of justice such as home background,
educational qualification, religious beliefs, enlightened self-interest etc.

Some people see justice as mere „judicature‟ which is a term used to refer to those
employed in the administration of justice, and in this sense it is nearly synonyms with judiciary.

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This term is also used to signify a tribunal; and sometimes it is employed to show the extent of
jurisdiction. To others justice can be seen as „Fair Trial‟ which is an examination before a
competent tribunal or law court which complies with the twin principle of natural justice- audi
altarem patem (a judge must hear both sides to a case before he comes to conclusion) nemo
judex in causa sua (one should not be a judge in his own cause)

Justice has also been described to mean „equality‟ which means possessing the same
rights, and being liable to the same duties. This is best illustrated by the concept „rule of law‟
which states that all persons are equal before the law. Therefore same should be treated alike as
Aristotle posited.

While others see justice as „morality‟ which is a beliefs about what is right behaviour and what is
wrong behaviour.

There exist 2 theories of justice: „Formal Justice‟ which enjoins the court to apply the law
strictly without regard to extra-legal consideration. (Awolowo v. Federal Minister of Internal
Affairs) and „substantive justice‟ which states that where the strict application of the law may
produce manifest absurdity or injustice, the judge may take into consideration some extra-
judicial factors in interpreting the law in order to arrive at his decision.

The problem of diversity of opinions as to the concept of justice is further complicated by

the fact that the society cannot devise rules of law that will fully satisfy the often competing and
conflicting demands of everyone at a time.

In conclusion, while Law is an important component of every society as no meaningful

development can be undertaken in a society devoid of laws it is however not an end in itself but
an instrument for achieving justice.

5. Role of the Judge in Decision Making

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The main function of the judiciary in any society is to interpret laws made by the
legislative arm of government and to adjudicate disputes among parties. The courts are the
„temple of justice‟ and both the judges and lawyers are worshippers in this temple of justice.

A lawyer is a person whose job is to guide and assist people in matters relating to the law,

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while a judge is a person who has the power to make decisions on cases brought before a court.
Both the layer while representing the interest of his client and the judge while justifying his
decision makes use of „legal rhetoric‟

Rhetoric is the act of seeking to convince or persuade another, either through the medium
of writing or speech, to accept one‟s point or view. Plato defined rhetoric as „the art of winning
men‟s minds with words‟ while Aristotle identified and distinguished between the two kinds of
rhetoric‟s forensic rhetoric and deliberative rhetoric. While lawyers make use of forensic
rhetoric, judges make use of deliberative rhetoric.

Forensic rhetoric relates to the lawyer representing the interest of his client before a court
and trying to convince the court to adopt his point of view in arriving at its decision while
deliberative rhetoric relates to the judge seeking to arrive at a rationalized decision that is
justifiable in the overall interest of the parties and the society.

The principal rhetorical device used in law is the „appeal to authority‟. This, in other
words, is the citing or referring to existing laws (judicial or statutory) to back up or justify the
position being canvassed. In Nigeria and other common law jurisdictions appeal to authority
entails referring to judicial and statutory authorities which constitutes what is known as the
primary sources of law. In some instances the opinions, writings commentaries etc of jurists and
learned writers as well as judicial decisions of other jurisdiction can be referred to; however they
are of persuasive effect. Such opinions and writings constitute secondary source of law. Until
about two and half decades ago, appeal to authority could also be said to be the strongest
justification that a judge could advance in support of his decision. As judges were bound to
follow relevant cited judicial and statutory authorities and adopt the position of the party that
cited them.

However presently the judge may consider other factors like; the proposed decision will cohere
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with existing principles and authorities, whether the decision will be acceptable in terms of
justice, the judge may refer to common sense supported with the view of a reasonable man and
public policy which involves justification in the larger context of the public good.

6(i) Law and Freedom: Freedom is the quality or state of being free. Freedom in relation to law
is the ability of man to express himself within the confines of law. The desire of man to be free is

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innate, in the quest fir man freedom there have been limitations and man has waged relentless
war against domination of different kind through the ages in the form of revolution or protest.
For example it was the efforts of the African nationalist that led to the struggle for the
independence of their countries from the colonialist in the mid 20th century which eventually led
to the political independence of all African countries. Also desire of workers to be free from
economic exploitation of employers led to the formation of trade unions to strengthen bargaining
power. Law recognises the rights of individuals to be free in a state and seeks to regulate the
exercise of that freedom in a way that will advance the interest and objectives of the individuals
and the state.

Freedom can be classified as;

 Social freedom- which is the right to be free and socialize with anybody of your choice.

 Religious freedom- which is the freedom to choose any religious association of your
choice

 Political freedom- which is the freedom to join any political party of your choice.
Includes right to vote and be voted for.

Economic freedom- which is freedom to buy and sell, includes freedom to contract etc. However
the state has prerogative to invalidate certain kinds of contract eg criminal contracts.

6(ii) Law and State: Like the concept of Law there are several concepts of a state. A state can be
defined as a territorial unit containing a stable population, under the authority of its government
with the sovereignty to control its affairs. Thus the features of a state can be identified as;

 Territory: This refers to a land mass with a boundary within which to determine the
geographical location of such state.

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Population: That is the number of people living within the territory.

 Government: Refers to the machinery for the administration of a state.
 Sovereignty: The supreme power of a state to make law and to control its affairs without
interference.
The role law plays in a stste is to to define the political structure and organization of a

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state for example Section 2(1) of the 1999 constitution of Nigeria, and to ensure a peaceful and
ordered society.
Law also defines the extent of the power of each organ of government and regulate their
interrelationship with each other. If an organ of government exceeds the scope of its power, the
purported exercise of power would be declared null and void and of no effect.
A state should be able to offer security, economic empowerment, shelter, education for
the citizens through prudent use of the resources by government officials.

6(iii) Law and Legitimacy: When we speak of legitimacy we are talking about authority i.e
where does a law derive its authority and validity.
There are different ways a law can derive its legitimacy;
 The Constitution: This is the grund norm in the society. Section 1(3) provides that
anything that is inconsistent with the constitution lacks validity.
 International Law- A state can derive its legitimacy from international law. Where a
country is a signatory to a treaty and it incorporates such treaty into its law. For Instance
in Nigeria Section 12 provides for domestication of a foreign treaty.
 English Law- A law may derive its legitimacy from English law. Even though presently
the English parliament no ;longer makes law for Nigeria but the high court rules provide
that where the law is silent in relation to a particular subject matter the court is to follow
the English law „for the time being applied‟.
Historical Bases/ Determinant of Legitimacy.
-Charisma of the Ruler/King: In the past, anybody occupying the position of a ruler or king
had a charisma in such a way that anything he said was regarded as legitimate. Based on the
charisma of the ruler whatever he said was binding.
However, today charisma is no longer a bases of measuring legitimacy of law. An example of
charisma is how common law was formed whereby Judges who made decisions in place of the
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king where seen as an embodiment of that is lawful and whatever they said during their
adjudication of disputes were final.
-Tradition/custom: There exist two components of custom i.e. Behaviour and Acceptance. This
can be seen as a ripple effect of the king‟s charisma. Rules made by the king where no longer
seen as legitimate because of the charisma for the king but because the people have behaved in
that way for a particular period of time. This was now seen as the generally acceptable way of

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behaviour.
-Rationalty: Rationality can be divided into two. According to Mark Webber rationality in law
can be divided into Logic and Ideology.
Logic refers to an intellectual component. We try to answer whether a law should be a law
and if the question is answered in the positive by a reasonable man then such law is logical.
Ideology refers to our moral values. In the society presently lots of debate bothers on the logic
and ideology behind rules in relation to abortion, euthanasia, gay rights etc
In conclusion, the concept of legitimacy is one which has changed over time due to the
development of the society. From charisma to rationality the determinants of legitimacy
continues to evolve.
6(iv) Law and Sovereignty
Sovereignty in relation to law is the supreme power to make law. Historically sovereignty has
not always been in the realm of the state but it existed in other powers. Sovereignty in relation to
the state can be traced back to 1648 after the war. Before then sovereignty was in God
represented through secular authorities like the Pope, Bishop etc. Before the rise of the church,
sovereignty resided in the Roman emperor. After 1648 peace treaties were signed and this led to
the creation of states.
Until the creation of modern states in the 17th century, sovereignty was absolute. However
sovereignty is no longer absolute because a state operates in an international community
consisting of other states. Also it has to fulfil agreements and treaties freely entered into and
abide by laid down rules. Article 21 of the United Nations Charter provides “All states are
sovereign equals”.
Jean Bodin a French writer introduced the doctrine of sovereignty into the western political
theory. As society progressed, several theories have been developed on how to curtail the power
of those authorities, such as theories of social contract, separation of power, rule of law etc.
In recent times sovereignty resides under democracy is vested in the people section 14(2).
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The people empower the elected representatives to exercise these powers for them.
There are two types of sovereignty;
1. Internal sovereignty- This is the power of a sovereign to govern, make laws and to
sanction erring citizens within its political unit.
2. External Sovereignty- This refers to the power of a state to regulate its domestic activities

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 without interference. It is also known as Negative sovereignty.

6(v) Law could said to be the most important component of a modern society. As it ensures
citizens live together and relate with one another in a peaceful manner. Law also governs the
relationship of government and the citizens. When man lived in „nature‟ as Thomas Hobbes
termed a lawless society man was predisposed to do anything he likes and fancy within the limits
of his mental and physical ability in his environment. Life then would be solitary, nasty brutish
and short as man was able to take up arms against another without first resolving to some
peaceful means of dispute resolution.

However as society advanced and the level of socialization between people increased some
habits of the people which were generally acceptable began to crystallize into custom and rules.

At first when such customs and rules were broken people administered justice by resorting to self
help, forcible reprisal and family feuds. For instance the surest remedy for the owner of a stolen
was to overpower the thief and recover his property. However this method was most time not
effective as if he had no superior power to dispossess the thief he would be left without a
remedy. Some special categories of people like the weak, the young, the aged and those who
were deficient or less privileged in one way or the other, were subjected to all sorts of
exploitation and deprivation.

It eventually became necessary for the society to be organised in such a way that the
competing interest in the society would be harmoniously balanced and those who suffered
damages as a result of the actions or inactions of another had access to remedy. At the initial
stages of development, law consisted mainly of customary rules or practises and ethical values
which were administered by monarchs or elders gathering at the village square to resolve
disputes. Social order was thus maintained through a series of unorganised sanctions such as
ostracism, ridicule, avoidance of favour etc
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The method of maintaining social order at that time had undergone many layers of
development and reforms to become what we have today whereby law is administered by
government through its agencies and officials such as the judiciary, police force, bureaucracy etc.

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 UNIVERSITY OF LAGOS

FACULTY OF LAW

LL.B DEGREE EXAMINATION

FIRST SEMESTER, 2015/2016 SESSION

CIL 201: LAW OF CONTRACT

Time Allowed: 2 hours 30 mins.

INSTRUCTION: ATTEMPT ANY FOUR QUESTIONS

1. Mr. Atom is the owner of three houses located at Plot 999, UNILAG Road, Akoka. On 30 th
April 2016, he offered to sell two of the houses to Mr. Perfect at the price of N45 million per
house on the condition that acceptance must be communicated within seven days. However, on
the 4th of May 2016, Mr. Perfect heard from Miss Amebo that Mr. Atom was about to sell the
houses to PW Constructions Ltd. On the 6th of Mar, Mr. Perfect accepts to buy the houses only to
be told that they had already been sold to PW Construction Ltd on 5th May 2016. Mr. Perfect
intends to sue Mr. Atom.

With the aid of relevant cases, discuss the issues arising from the above scenario.

2(a) Discuss the rules governing acceptance.

(b) Mr. Okeke wrote to Mr. Oxford, offering to sell his house situate at plot 411 Baban street,
Sambisa, Bornu State, at the price of N 5.5 million. Mr. Okeke stated in the letter that he hoped
to hear from Mr. Oxford within five days. Mr. Oxford accepted on the fifth day on the condition
that he will pay in five equal instalments over a period of six months. Mr. Okeke without
bothering to get back to Mr. Oxford sold the house to Miss Pepeye who offered him an attractive
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price of N6m. Mr. Oxford plans to institute an action against Mr. Okeke.

Advise the parties

3. “It is a settled principle of law that where the promise owes the promisor a legal duty, then
performing that duty is in itself sufficient consideration.”

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To what extent is the above statement correct? Illustrate your answer with relevant cases.

4. Derek, a wealthy businessman who lives in Alapere wishes to transport furniture to Victoria
Island. He enters into a contract with Olu. During the course of negotiations, Derek had
requested that Olu undertakes the journey through Third Mainland Bridge and Olu promised to
do so. Olu is self employed and offers a price substantially lower than any other transporter
because he offers no insurance cover and the contract between them provides that “no liability is
accepted for any damage, howsoever caused to goods during the course of transit.” Olu expects
his customers including Derek to take out special insurance cover to protect their properties
whilst in transit. However, Olu decides to pass through Ikorodu road, in the belief that it will be a
shorter journey. Unfortunately, he ran into a roadblock and angry protesters on Ikorodu road who
destroyed many cars indiscriminately. Olu‟s truck is attacked and all Derek‟s property is
destroyed.

Discuss

5. The precise place at which the courts draw a dividing line between terms and representations
is affected by a variety of factors.

Discuss

6(a) Briefly discuss the rule governing the contractual capacities of infants in Nigeria.

(b) Bade, a 17 year old poor boy goes into Murtala‟s shop to buy an I-phone, two shirts, milk,
sugar and bread. He promised to pay half of the money instalmentally over a period of six
months. Bade could not fulfill his obligation to Murtala. A week before the transaction, Bade had
received 5 shirts as gifts from an Islamic Organization beside his house. Advice Bade on what to
do. Would your answer have been different if Bade was an illiterate?

ANSWERS
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1. Whether there is an existing contract for the sale of land between Mr. Perfect and Mr.
Atom which he can enforce.

An offer is a definite promise to be bound by certain terms stipulated within the contract
provided that these terms are accepted. It is a definite or promise made by one party with the

210
intention that it shall become binding on the party making it as soon as it is accepted by the party
to whom it is addressed. An offer must be precise and unequivocal, leaving no room for
speculation or conjecture as to its real content in the mind of the offeree. Treitel defines offer as
an expression of willingness to contract on certain terms made with the intention that is shall
become binding as soon as it is accepted by the person to whom it is addressed. It is a statement
of terms on which the offeror is willing to be bound. Offer is a promise that, according to its
terms, is contingent upon a particular act, forbearance or promise given in exchange for the
original promise or the performance thereof, a demonstration of the willingness of a party to
enter into the bargain, made in such a way that another individual is justified in understanding
that his or her assent to the bargain is invited and that such assent will conclude the bargain. It
should be noted that an offer could be made expressly or implied by conduct. In Storer v
Manchester city council, the council intended to sell Co2. They sent a letter to Storer telling him
to sign the document, meaning they were willing to sell. It was held to be a valid offer. In
Brodgen v Metropolitan Railway Co., the plaintiff made an offer to the defendants in writing,
requesting the latter to sign and return the form containing the terms of offer. The defendants
never did this, but nevertheless they carried out the contract on those terms. It was held that they
were bound by the contract. They had accepted the offer by their conduct. Unless the contract
contains the key terms of the contract, it cannot be the basis of a binding contract.

For an offer to be capable of becoming binding on acceptance, it must be definitely clear

and final. If it is merely a preliminary move in negotiations which may lead to a contract, it is not
an offer but an Invitation to Treat. It should be noted that an offer becomes binding when it is
accepted by the party to whom it is addressed. Acceptance is the final, unqualified and
unequivocal expression of assent to the terms of the offer as conveyed by the offeror. It is also a
promise or act on the part of the offeree indicating willingness to be bound by the terms and
conditions contained in an offer. It is a finite and unqualified assent to the terms as conveyed by
the offeror. The offeree ought to have made up his mind. In Orient Bank v Bilante Int’l Ltd,
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Niki Tobi describes acceptance as the reciprocal act or action of the offeree to the offer in which
he indicates his agreement to the terms of the offer as conveyed to him by the offeror. It is an act
of compliance with the terms of the offer. It is the element of acceptance that underscores the
bilateral nature of contracts. The learned Justice of the Court of Appeal (as he then as) went to
describe the various ways by which acceptance can be manifested namely

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 o By the conduct of the parties
o By their words
o By documents passing between them

Thus, acceptance must be communicated to the offeror as mere intention to accept or

silence cannot constitute acceptance (Felt house v Bindley)

An acceptance is said to be an expression of assent by the offeree, stating that he agrees that he
agrees to the terms of the offer as conveyed by the offeror. It is trite that an acceptance must be
unqualified, unequivocal, without any variation with the original offer. It must be a mirror image
of the original offer unless it will be invalid. Thus, for instance, a counter offer is not a valid
acceptance. In Hyde v Wrench, it was held that a modification by the plaintiff of the defendants
offer of 1000 pounds for his estate for 950 pounds was a counter offer and destroys the original
offer which he purported to accept. Similarly, in Major General George Innih (RTD) & Ors v
Ferado Agro and Consortium, the 3 weeks extension sought by the respondents instead of 3
days was held to be a counter offer.

FIRST SEMESTER, 2013/2014

CIL 201: LAW OF CONTRACT 1

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1. Chief Wooding and his family members were on a family vacation. His daughter, Turaya, a
year two law student of UNILAG was taken a mental note of some of the major events and
analyzing them in terms of relevant rules of law of contract. When passing through a mall, she
saw an automated teller machine (ATM) and momentarily thought that she needed to withdraw
some money. When it got to her turn to use the machine, she saw a green light blinking signaling

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that she could insert her card. She was initially hesitant to insert her card, thinking that would
constitute an acceptance to withdraw money. She eventually made up her mind and inserted the
card, after which this inscription “Welcome Turaya Wooding”, appeared on the screen following
which she prompted to insert her pin number. She was further instructed to press any of the
following options: “change of password”, “balance inquiry”, “transfer”, “withdrawal”. Turaya
pressed “withdrawal”. Thereafter, the following options appeared: “N 5000”, “N 10000”, “N
15000”, “N 20000”, “others”, she pressed “N 10000” and “enter”. Immediately, the ATM
dispensed the sum of N 10000 which she collected. The transaction ended with the ATM saying
“thank you for banking with us”.

With the aid of decided cases, discuss how the use of the ATM illustrate the concept of
invitation to treat, offer and acceptance, clearly indicating at what stage of the transaction each of
the concepts would be said to have occurred. Would your answer be different if Turaya had
failed to press “enter”?

2. Mr. Jadesola would be retiring from the service of his company, Limpopo plc as an executive
director, after 30 years of meritorious service. According to the company‟s policy, he is entitled
to go with his two official cars provided they agree o n the acceptable price which must not be
less than ¼ of the current market value of the cars. The company offered to sell the cars to him at
a total price of 450000. The letter ended with ah phrase, “this is a tentative agreement without
engagement”. Mr. Jadesola responded “I accept to buy the cars provided they would be fully
repaired and serviced”. The managing director agreed to do so and communicated this to Mr.
Jadesola on phone. Shortly after, a new management took over and requested Mr. Jadesola to
return the two cars upon his retirement. His son Bobo, a 200 level law student advised Mr.
Jadesola to forward a cheque for the sum of 450000 in full and final payment of the prices for the
car. According to him, that will seal the deal. Advise Mr. Jadesola.

3. Messrs A, B, C, D & E who were classmates in secondary school met at a reunion organized
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by the school in Abuja. Mr. A, who happens to be the most prosperous in terms of position and
status, was appointed as the interim chairman of the alumni association. In his acceptance
speech, he charged the members of the Association to help one another as much as they could
and do business together. In practical demonstration of his commitment to the goal, Mr. A
promised to appoint their retired principal as a member of the board of his company, in

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appreciation of his devotion to the many generations of students who had passed through him.
Furthermore, Mr. A promised to sell his Prado jeep to C for N25000. Mr. A also promised to
accept the sum of N35000 from Mr. E in full and final discharge of E‟s obligation to repay him a
debt of N2.5m owed by him by him since 2008. Although E detested the reference by A to their
private affairs in a public speech, he was, however, relieved that he would be free at last from
Mr. A persistent trouble. Messrs A, B, C, D & E agreed to pay for the rental of the hall for their
meeting every month in rotation. Mr. E failed to honor the agreement when it was his turn to pay
the rental of the hall, on the ground that the agreement was a social agreement.

Advise the parties on the legal effect of each of the promises.

4. Briefly discuss the various rules developed by the court to redress the harsh effect on
consumers, of the application of exclusive clauses in standard form contracts.

5. Mr. Just took a loan of N 50 Million naira from GT Bank Plc, but could not repay as agreed.
Consequently, Mr. JUST entered into an agreement with Best managers Ltd under which the
latter was to manage the business of the former with the intention that all proceeds of business
would be paid into the GT Bank Plc until Mr. Just‟s debt with the bank was completely
liquidated. Best Managers ltd managed Mr. Just business for six months, and without the
knowledge of GT Bank Plc, handed the business back to Mr. Just under a new agreement. GT
Bank Plc intends to sue Best managers Ltd as guarantors of Mr. Just‟s loan of N 50 million
relying on the agreement between Mr. Just and Best Managers Ltd. Advise the parties.

6. With the aid of relevant statutory and judicial authorities, discuss the existing approaches for
the incorporation of implied terms into an existing contract.

ANSWERS

1. Distinction between Offer, Invitation to Treat, Acceptance.

January 1, 2017

An offer is a definite promise to be bound by certain terms stipulated within the contract
provided that these terms are accepted. It is a definite or promise made by one party with the
intention that it shall become binding on the party making it as soon as it is accepted by the party
to whom it is addressed. An offer must be precise and unequivocal, leaving no room for
speculation or conjecture as to its real content in the mind of the offeree. Treitel defines offer as

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an expression of willingness to contract on certain terms made with the intention that is shall
become binding as soon as it is accepted by the person to whom it is addressed. It is a statement
of terms on which the offeror is willing to be bound. Offer is a promise that, according to its
terms, is contingent upon a particular act, forbearance or promise given in exchange for the
original promise or the performance thereof, a demonstration of the willingness of a party to
enter into the bargain, made in such a way that another individual is justified in understanding
that his or her assent to the bargain is invited and that such assent will conclude the bargain. It
should be noted that an offer could be made expressly or implied by conduct. In Storer v
Manchester city council, the council intended to sell Co2. They sent a letter to Storer telling him
to sign the document, meaning they were willing to sell. It was held to be a valid offer. In
Brodgen v Metropolitan Railway Co., the plaintiff made an offer to the defendants in writing,
requesting the latter to sign and return the form containing the terms of offer. The defendants
never did this, but nevertheless they carried out the contract on those terms. It was held that they
were bound by the contract. They had accepted the offer by their conduct. Unless the contract
contains the key terms of the contract, it cannot be the basis of a binding contract.

For an offer to be capable of becoming binding on acceptance, it must be definitely clear

and final. If it is merely a preliminary move in negotiations which may lead to a contract, it is not
an offer but an Invitation to Treat. Expressed in the Latin maxim invitatio ad offerendum
meaning inviting to offer, it is, according to Prof. Andrews Burrows, an expression of
willingness to negotiate. A person making an invitation to treat does not intend to be bound as
soon as it is accepted by the person to whom the statement is addressed. It is an offer to receive
offers. As stated by Bowen L.J in Carlill v Carbolic Smoke Ball co., a person making an offer
becomes “liable to anyone who, before it is retracted performs the condition…” whereas by
contrast, in Invitation to treat, “… you [the offeror] offer to negotiate, or you issue
advertisements… Such advertisements are offers to negotiate – offers to receive offers – offers to
chauffeur. The important thing to note is that an invitation to treat not being an offer, but being a
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phenomenon preliminary to the offer, is not capable of an acceptance which will result in a
contract” The distinction between offer and acceptance is best understood through the categories
that the courts create, such as

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 - Auctions: The auctioneers request for a bid is not an offer but an invitation to treat. The
bid is the offer and the acceptance occurs when the auctioneers hammer falls. Payne v
Cave, the defendant retracted his bid before the auctioneers hammer fell and it was held
that there was no contract.
- Display of goods: It has been held that the display of goods in shops, supermarkets etc
constitute an invitation to treat. In Fisher v Bell, it was held that the displaying of a flick
knife for sale in a shop did not contravene any legislation prohibiting the sale of such a
weapon.
- Advertisement: Advertisement of goods in a catalogue has been held not constitute an
offer but an invitation to treat. In Grainger v Gough, the appellants were agents of a
French wine merchant. They distributed price lists on the merchant‟s behalf in an attempt
to drum up business. It was held that the action of the appellants was that of an invitation
to treat.
- Invitation to tender: It is merely an invitation for offers from interested parties and is not
in itself an offer. In Spencer v Harding, the defendants offered to sell their stock by
tender and the court held that they had not undertaken to sell to the person who made the
highest tender but were inviting offers which they could accept or reject as they saw
appropriate.

To form the contract, there must be an acceptance of the offer by the party to whom the offer
is addressed. It is a final, unqualified and unequivocal expression of assent to the terms of the
offer as conveyed by the offeror. For an offer to be valid it must be plain, unequivocal, and
unconditional, without any variance with the original offer and it must be communicated without
reasonable delay. Acceptance can be manifested by the express words of the party accepting, by
the conduct of the parties, by documents passing between them.

In the instant case, the green light blinking of the ATM, the prompt to insert her pin, as well
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the options for “change of password”, “balance inquiry”, “transfer”, “withdrawal”. Turaya
pressed “withdrawal” all constitute an invitation to treat preliminary to the contract. The option
to select a specific sum of money constitutes an offer, of which she accepted by pressing the N
10000 button as well as the enter button which led to the ATM to dispense the sum specified
which forms the contract. If she had failed to press the enter button, there would not be any

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binding contract as the option to withdraw a specified money is an offer which she could reject
and ultimately bring the transaction to an end.

2. Invalid Acceptance.

An offer becomes binding when it is accepted by the party to whom it is addressed.

Acceptance is a final. It is a final, unqualified and unequivocal expression of assent to the terms
of the offer as conveyed by the offeror. It is also a promise or act on the part of the offeree
indicating willingness to be bound by the terms and conditions contained in an offer. It is a finite
and unqualified assent to the terms as conveyed by the offeror. The offeree ought to have made
up his mind. In Orient Bank v Bilante Int’l Ltd, Niki Tobi describes acceptance as the reciprocal
act or action of the offeree to the offer in which he indicates his agreement to the terms of the
offer as conveyed to him by the offeror. It is an act of compliance with the terms of the offer. It
is the element of acceptance that underscores the bilateral nature of contracts. The learned Justice
of the Court of Appeal (as he then as) went to describe the various ways by which acceptance
can be manifested namely

o By the conduct of the parties

o By their words
o By documents passing between them

Thus, acceptance must be communicated to the offeror as mere intention to accept or

silence cannot constitute acceptance (Felt house v Bindley)

However, there are certain situations in which there is an apparent acceptance of an offer
but which terms turn out to be invalid and ineffective. They include counter offer, conditional
acceptance, cross offer, acceptance in ignorance of the offer, acceptance of tenders
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Conditional Acceptance – Acceptance subject to contract: A conditional offer is not a valid or

binding acceptance. Any acceptance which is made subject to a condition cannot create a binding
contract until that condition has been fulfilled. Thus conditional acceptance does not constitute
acceptance. As regards enforceability, the first document is not worth the paper it is written on. It
is merely a proposal to enter into contract, a transaction which is a legal nullity and it may be

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disregarded by either party with impunity. Until the completion of the formal contract, both
parties enjoy a locus poenitentiae (point of repentance). Thus in Winn v Bull, the defendant
agreed to take a lease of a house “subject to the preparation and approval of a formal contract”. It
was held that in the absence of a formal contract the agreement was not binding. Thus, in
Chillingworth v Esche, it was held that an agreement to purchase free hold land “subject to a
proper contract to be prepared by the vendor‟s solicitor” was not a valid agreement. It is still
invalid even if the full purchase price is paid. In Maja Junior v UAC, an agreement to buy the
defendant‟s port “subject to contract” was held to be invalid despite the payment of the purchase
price. Also in Odufunade v Ososami which is similar with the issue at hand, the plaintiff offered
to find a buyer for the defendant‟s building provided that the defendant would allow him claim
as commission any amount over 12000 pounds that the defendant wanted for the building. The
defendant replied: „I would like to confirm my tentative agreement without engagement to accept
an offer not less than 12000 net to myself to be paid by your clients… It is further understood
that any amount by which your clients may be disposed to increase the offer to cover your
commission will be credited to your account‟. Eventually, the defendants decided to deal directly
with the plaintiff‟s clients and sold the building to them for 20500 pounds. The plaintiff sued the
defendant for breach of contract. It was held that the words used in the contract postponed
liability or legal relationship between the parties until an enforceable contract comes into
existence and that the defendant was within his legal right to revoke the agreement.

In the instant case, the supposed contract between Limpopo plc and Mr. Jadesola is an
invalid agreement as the contract was made subject to contract and is unenforceable. As regards
the advice given by his son to pay the purchase price, it would be immaterial giving the nature of
the offer (see Maja Junior v UAC where it was held that payment of the purchase price in an
agreement subject to contract does not validate the contract).

3. The issues arising for legal determination are:

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i. Whether or not Mr. A‟s promise constitutes a gratuitous promise and a moral obligation.

A promise is said to be merely gratuitous where no consideration has been furnished for
it i.e. where it has not been bought with a price. Consequently, the effect, therefore, is that since
there is an absence of reciprocity, the promise cannot be enforced, as was the case in L.A

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Cardoso v the executors of the late J.A Doherty. Here, the plaintiff who had mortgaged his
properties for various loans from the late Doherty. When he was unable to repay the loans, the
property passed to Doherty, who proceeded to sell them. But he did not sell the one in which the
plaintiff was living, promising to allow the plaintiff to live in it during his life time. This promise
was reiterated by the executors of Doherty‟s estate after the latter‟s death. When contrary to their
undertaking the executors subsequently tried to sell the property, the plaintiff sought a
declaration that he was entitled to live on the property for the rest of his life, and an injunction
restraining the defendant from selling it. It was held inter alia by the W.A.C.A that the
declaration and injunction would be refused on the ground that the plaintiff furnished no
consideration for the promise that he could reside in the property for life.

Also, it is trite that a moral obligation owed do not constitute valuable consideration as
there was no bargain. Thu, in Eastwood v Kenyon, it was held that a promise by a ward to her
guardian to repay him for his contribution to her life was unenforceable. Similarly, as was held in
the case of Stilk v Myrick, performance of an existing obligation does not constitute a valuable
consideration.

Thus, applying the above, it can be said that the promise is merely a gratuitous as the
principal had not furnished any valuable consideration in return for it. He merely performed an
existing duty. The promise, therefore, constitutes a gratuitous promise and as such
unenforceable.

ii. Whether or not the sum of N 25000 constitutes adequate consideration for the sale of Mr.
A’s prado Jeep to B.

It is trite that in the absence of fraud, duress and misrepresentation, the court will not
question the adequacy of consideration. The courts will therefore, not inquire into the
comparative value of each respective consideration by the parties. Hence the dictum that
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consideration need not be adequate but must be sufficient and capable of value in the eyes of the
law. This, in Thomas v Thomas, a consideration of 1 pound for a house was regarded a valuable
consideration. Also, in African Petroleum Ltd v Owodunni, it was held that the agreement to
pay N 400 per annum for accommodation as opposed to the market value of N 65000 was
adequate consideration.

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 In applying the above, it can be said that if Mr. B pays the N 25000 for the car, it will
constitute a valuable consideration irrespective of the market price of the car. Thus, it is
submitted that the payment of N 25000 for the car would constitute a sufficient consideration

iii. Whether or not the promise by Mr. A to accept N 35000 from Mr. E was valid.

It is normally considered that when a contract is made, its term is fixed. For any variation
to be binding, it must be mutual as both parties must be offer something additional. Performance
of an existing contractual obligation cannot be legal detriment to the promisee or a legal benefit
to the promisor. The general rule was applied in Pinnel’s case where it was held inter alia that
the payment of a lesser sum for an existing obligation does not constitute satisfaction for the
whole sum and the case of Foakes v Beer.

However, the exception this rule include, among others, the rule of accord and
satisfaction. This takes the form of a compromise. Where a party is making a claim, which is
disputed by the other party, they may reach a compromise on mutually agreed terms. Once this
happens, the parties are deemed to have abandoned their original positions and can only bring
claims within the compromise or new agreement. Such a new agreement is the accord while the
respective concessions made is the satisfaction. In Adekunle v A.C.B, the appellant was the
respondent’s former solicitor. Disputes arose between the parties over fee. The appellant
claimed that he was entitled to 10% of the cost awarded in favour of the respondent while the
respondent claimed that he was entitled to 10% of the cost actually collected. While the parties
were still in dispute, the respondent offered the appellant 150 pounds in full and final satisfaction
of the disputed claim of about 349 pounds. The appellant accepted the money and later sued for
the balance. The claim failed. It was held that the agreement under which the appellant accepted
the 150 pounds from the respondent constituted an accord and satisfaction.

Also under the rule of promissory estoppels as applied in the High Tree cases, where a
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promise is made which was intended to create legal elations and which to the knowledge of the
person making the promise was going to be acted upon by the person to whom it was made, and
which was in fact acted upon, the promisor will be held bound by his promise. Also, in Tika
Tore Press v Abina, the plaintiff asked the defendant to pay the sum of 1200 pounds for a debt of

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2,465 pounds when the goods remained unsold and deteriorating. It was held that they were
bound by their promise.

Thus, from the foregoing, the promise by Mr. A to accept N 35000 for the debt of N 2.5
million will constitute a valid agreement by the doctrine of promissory estoppels and Accord and
satisfaction.

iv. Whether or not the agreement between A, B, C, D and E creates an intention to enter into
legal relations.

Among situations where there is an absence of an intention to create legal relations is

intermediate situations which are neither commercial nor social/domestic agreements. Under
this, there exists a rebuttable presumption that the parties do not intend to create legal relations.
One form of this agreement is a car pool agreement where the owners of cars agree to give lifts
to their friends or work mates, and passengers in turn contribute towards maintenance of the car.
Thus, according to UpJohn L.J., in Coward v Motor Insurers Bureau, the court will be reluctant
to uphold such agreements in the absence of evidence that the parties intended to be
contractually bound. The reasoning here, according to his Lordship is that in considering the
hazard of everyday life coupled with its encumbrances, make it most unlikely that either
contemplated that the other will be contractually bound.

Thus, in applying the above, it can be said that the joint agreement between Messrs A, B,
C, D and E constitutes an intermediate agreement and as such the general presumption that the
parties do not intend to be bound applies.

Advising the parties,

i. The principal is advised to furnish a valuable consideration for the promise of employment or
get such promise in writing or under seal.
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ii. Also, Mr. C is advised that the payment of N 25000 for the payment is an adequate
consideration.

iii. Mr. E is advised to pay almost immediately the N 35000 in reliance on Mr. A’s promise as
Mr. A is estopped from reverting after the promise has been made.

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iv. Messrs A, B, C, D and E are advised that the agreement to pay for the rental of the hall is not
binding on any of them,

4. Rules Developed by Courts to Redress the Harsh Effect of the Application of Exclusive
Clauses in Standard Form Contracts.

One of the fundamental principles of the law of contract is the freedom of contract which
allows parties to a contract to decide how they want to enter into a contract without any form of
interference. Thus, a party may decide to limit or exclude his obligations under the contract. For
instance, a seller of goods can exclude the operation of all the terms implied by the Sale of
Goods Act by the insertion of the appropriate clauses. Exclusion clauses are used to totally
exempt liability of the party in whose favor it is inserted as opposed to limiting clause which
aims at reducing liability to the extent spelt out in the contract. They are found mostly in
standard form contracts such as insurance contract etc. However, there are situations where
limiting clauses could result in abuse, non fulfillment of obligations and to check the injustice
arising from this, the courts have developed rules to limit the scope and effectiveness of these
clauses.

Classification of Rules

The rules that have been developed over the years by the court and legislation have been
classified into the following:

o Incorporation of terms
o Interpretation of terms

1. Incorporation of terms: The question here is as to whether the terms in question have been
incorporated into the contract. There are 3 ways to determine if an exemption term is
incorporated. They are:
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o By signature for documents with the requirement of signing.

o By reasonable notice for unsigned document.
o By previous course of dealings.

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- By Signature: The general rule is that where the document is signed at the making of the
contract, in the absence of fraud, duress or misrepresentation, the content becomes part of the
contract whether the parties have read it and understood it. The principle was first applied by
Scrutton L.J in L’estrange v Graucob where the plaintiff signed a form printed by the sellers of
an automatic slot machine which she was ordering from them. Apart from the essential terms of
the contract contained in ordinary print, an exemption clause in very small print contained the
following terms: “any express or implied condition, statement, warranty, statutory or otherwise
not stated here is hereby excluded”. The machine, when eventually delivered, did not work
satisfactorily and the buyer brought the action against the sellers. The sellers relied on the
exemption clause in their defense and the plaintiff pleaded that at the time she signed the order
form, she had not read it and she knew nothing of the content and that the exclusion clause could
not be easily read being in small print. It was held by the court that when a document containing
contractual terms is signed, then in the absence of fraud and misrepresentation, the party signing
it is bound, and it is immaterial whether he has read it or not (See also Chagoury v Adebayo).

- By reasonable notice: Where a document is unsigned, the exemption clause becomes part
incorporated into the contract where it can be established that the recipient had reasonable notice
of them. Only a court can establish the extent of reasonability of notice. The rules for
determining whether the injured party is bound by exclusion term in a document not signed by
him was first propounded comprehensively in Parker v South Eastern Ry. co. Here the plaintiff
deposited a bag in a cloak room at the defendants‟ railway station, paid the clerk 2 pence and
received a paper ticket on which was printed a number and a date and notices as to when the
office would be open, and the words „see back‟. On the other side several clauses were printed,
including, “the company will not be liable for any package exceeding the value of ten pounds”.
When the plaintiff returned to claim the bag, it could not be found. He brought a claim for 24
pounds 10 shillings for its loss, and the defendants relied on the clause limiting their liability for
the loss of property limiting their liability to 10 pounds. The trial court held in favor of the
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plaintiff. The defendants appealed. The Court of Appeal laid down the guidelines for
determining liability in the case of unsigned document as follows:

o Knowledge: i) if the person receiving the ticket did not see or know that
there was any writing on the ticket, he is not bound by the

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 condition

ii) if he knew that there was writing on the ticket and knew

or believes that the writing contained conditions, then he

is bound by the conditions.

o Reasonable knowledge: if he knew that there was writing on the ticket, but
did not know or believe that the writing contained conditions,
nevertheless he would be bound if the party delivering the
ticket to him had done all that was reasonably sufficient to
give him notice that the writing contained condition.

Criteria for reasonable notice

a. Time: Notice should be before or at the point of entering the contract. It is clear that if an
exemption clause is to be effective, notice must be given to the other party before the concluded
is concluded. In Olley v Marlborough Court, a notice of on the wall of a hotel room exempting
liability of the hotel was held to be invalid because the contract was already formed.

b. Form of notice: Notice will only be considered reasonable if it is in a document which a

reasonable person would expect to contain contractual terms (see Odeniyi v Zard & Co.). Tickets
and receipts are generally acknowledgement of payment. To prove the existence of a condition,
extra steps have to be brought to the notice of the other party that such terms exist. In Chapelton
v Barry UDC, the plaintiff wished to have 2 decked chairs from the defendant council. The
plaintiff took 2 chairs at hire price of 2 pence and obtained a ticket which he put into his pocket
without reading. The chair he was sitting on collapsed and he was injured. The defendant denied
liability relying on the provision at the back of the ticket excluding them from any liability for
any injury or damage. It was held that no reasonable person would make a receipt as anything
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than an evidence of payment.

- By Previous course of dealings: Where a party has knowledge of the terms as a result of
previous course of dealings, the exclusion clause will be incorporated. In Mccutcheon v Mac
Brayne, it was held that in spite of the previous course of dealings, the agent could not be

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imputed with the knowledge of the exemption clause since he never read the document and
therefore had no actual knowledge of their contents. Thus, as applied in the case above, it must
be established by the other party that the injured party had actual knowledge of the terms not
merely that he knew that there were conditions if he never bothered to read them.

2. Interpretation of Exemption Clauses

Other rules and principles employed by the courts in restricting the scope and effect of
excluding and limiting terms are generally applicable to both signed and unsigned documents.
They are divided into two namely; contra-proferentum rule and fundamental breach rule.

- Contra-proferentum rule: Here, the words written documents are construed more forcibly
against the party using them. In other words, any ambiguity or uncertainty, in the meaning and
scope of an exclusion clause will be resolved against the person inserting it in the contract. The
rule of strict interpretation can be brought under this rule.

 Strict Interpretation Approach: Where the words are ambiguous, they are interpreted in
such a way least favorable to the party relying on it. Thus in Baldry v Marshall, the
plaintiff bought a car from the defendants in a contract containing a term excluding “any
other guarantee or warranty, express or otherwise. The car turned out not to be suitable
for the purpose for which the buyer needed it. The car turned out not to be suitable for the
purposes for which the buyer needed it. This constituted a breach of the implied condition
in section 14(1) of the Sale of Goods Act. It was held was held that the exemption clause
did not apply since it covered only breaches of guarantees and warranties. Te breach was
one of condition and they were thus liable (see Andrew v Singer)
 Negligence: Where a party‟s contractual liability could arise from negligence and any
other cause of action, unless an exemption clause specifically refers to negligence, it will
not be construed to cover it. Where liability could arise from both negligence and any
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other course of action, unless an exception clause specifically refers to negligence, it will
not be construed to cover it. This is because the courts regard it as inherently improbable
that one party to a contract could intend to absolve the other party from the consequence
of the latter‟s own negligence. Thus in White v John Warrick, the plaintiff hired a
bicycle from the defendants. It was a term of the agreement that nothing in this agreement

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 shall render the owners liable for any personal injuries to the riders of the machine hired.
The plaintiff was injured when he was thrown off the bicycle when the defective saddle
suddenly tipped over. He brought an action for negligence in tort and alternatively a
breach of contract. It was held that the exemption clause covered only liability for breach
of contract but not negligence. Thus, the defendants were also liable. In Ag Bendel v
UBA, it was held that the respondents were not protected by the exclusion clause because
they had acted negligently.
 Privity of contract: By the doctrine of Privity of contract, a contract cannot confer any
right on one who is not a party to the contract. Thus, an exclusion clause will not as a
rule, protect someone who is not a party to the contract in which it is contained. In Adler
v Dickson, the English Court of Appeal refused to extend the exclusion clause contained
in a contract to person not privy to the contract. A similar decision was arrived at in
Cosgrave v Horsfall.

- Fundamental Breach rule: Until the decision of the House of Lords in the Suisse Atlantique
case in 1966, it was formerly believed that a party that had committed a fundamental breach of a
contract could not rely on the exclusion clause contained in the contract. Delvin J. defines a
fundamental breach in Smeaton Hanscomb & Co v Sasson I. Setty & Sons Co. (No 1) as
something which underlies the whole contract so that if not complied with, the performance
becomes something totally different from that which the contract contemplates. The principle has
been applied in the following situations:

(1) Hire-purchase agreements: In Karsales (Harrow) Ltd v Wallis, W agreed to buy a Buick car
under a hire-purchase agreement which included the clause: “No condition or fitness for any
purpose is given to the owner or implied therein”. One night the car was towed to W‟s house by
the agent of the finance company and when W found it the next morning, parts of the car was
missing, others were broken, and it was incapable of self-propulsion. W refused to pay the
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installments and was sued by the plaintiffs who relied on the exclusion clause to protect them
from obvious liability. It was held by the English Court of Appeal that an exclusion clause could
not protect them from a breach of the degree and gravity of a fundamental breach.

(2) Bailment: In Alexander v Railway Executive, the court held the defendants liable in spite of
an exemption clause excluding the defendants from liability for loss, mis-delivery or damage to

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any articles exceeding 5 pounds because they deliberately allowed an unauthorized person access
to the luggage. A similar decision was reached in Sze Hai Tong Bank v Rambler Cycle Co.

(3) Sale of Goods: As Lord Abinger stated in Chanter v Hopkins, if a man supplies beans when
he is supposed to supply peas, this is not a breach of contract but non-performance. In Ogwu v
Leventis Motors, over an agreement to supply a one-year-old lorry but instead a four-year-old
lorry was delivered, it was held that an exemption clause in a contract only avails a party when
that party is carrying out the contract in its essential respect. Thus, the respondents were liable.

(4) Deviation cases: It has been held in several cases that a ship owner who departs from the
agreed route without justification would lose the benefit of any exemption clause inserted into
the carriage contract (Gunyon v South Eastern and Chatham Ry. Co.’s Managing Committee).

However, this position changed with the decision of the House of Lords in the Suisse
Atlantique case and received further approval in the case of Photo Production v Securior
Transport. Here, the plaintiffs, a company which owned a factory entered into a contract with
the defendants, a security company, by which the defendants were to provide security services at
the factory including night patrols. While carrying out a night visit to the factory, an employee of
the defendants deliberately started a small fire which got out of control and destroyed the factory
and stock valued at 615000 pounds. The plaintiffs sued on the grounds that the defendants were
liable for the acts of their employees. The defendants pleaded an exclusion clause contained in
the agreement which exempted them from liability in respect of acts done by their employees.
The House of Lords upheld this argument and ruled in their favor. Unless the clause excluding
liability is contained, the courts will hold the party in breach liable. Thus, the current position of
law is that an exclusion clause can avail a party in fundamental breach of a contract.

The various rules are the rules employed by the courts in redressing the harsh effects of
exclusion clause in standard form contracts.
January 1, 2017

5. Privity of Contract

As a general rule, only parties to a contract can sue to enforce rights arising out of the
contract. It also follows that only those who have furnished consideration towards the formation
of the contract can bring an action on it. This principle was stated by Lord Haldane in Dunlop

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Pneumatic Tyre Co. Ltd v Selfridge Ltd where he noted that common law knows nothing of a
jus quaesitum tertio arising by way of contract i.e. recognizing of right of third parties to a
contract is alien to common law as a general rule.

Thus, if X promises Y for a consideration to render a service to Z, Z cannot sue X if he

(X) fails to carry out the promise. Z is not a party to the contract. He is just a beneficiary. Only Y
can sue to enforce it. In Price v Easton, X (a third party) owed Price 13 pounds. Easton promised
that if X worked for him, he would discharge X‟s debt to Price. X did the work, but Easton failed
to discharge the debt. Price sued Easton. His action failed. It was held that he could not recover
because he was not a party to the contract. Also in Tweedle v Atkinson, the fathers of a husband
and wife, in pursuance of an oral agreement made between them before the marriage, agreed
together in writing that one of them should pay the husband 200 pounds and the other should pay
him 100 pounds, and that the husband should have power to enforce the payment in any court of
law. An action by the husband to against the wife‟s husband to enforce the agreement failed.
Final approval was given in Dunlop Pneumatic Tyre Co. Ltd v Selfridge Ltd. In this case, the
plaintiffs sold tyres to a certain dealer on the understanding that he neither would nor resell
below a certain price and that in the event of sale to customers the dealer would extract the same
promise from them. The dealer sold tyres to Selfridge who agreed to observe the restrictions to
pay Dunlop 5 pounds for each tyre they sold below the restricted price. Selfridge sold some tyres
below the restricted price to a customer and Dunlop brought this action to enforce the promise to
pay 5 pounds per tyre, for the breach. It was held that while Selfridge had committed a breach of
the contract between him and Dunlop brought this action to enforce the payment of the 5 pounds
per tyre, for breach. It was held that while Selfridge had committed a breach of the contract
between him and the dealer, the Dunlop Company was not a party to this contract and had
furnished no consideration for the defendant‟s promise. Similarly in Chuba Ikpeazu v African
Continental Bank which is similar to the issue raised above, the appellant entered into an
agreement with one Emodi, a debtor of the respondent bank, under which the appellant (who at
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that time was the bank‟s solicitor) was to run the Emodi‟s business with the intention that all
proceeds should be paid to the bank until Emodi‟s debt was completely liquidated. The appellant
managed Emodi‟s business for some time and then under a new agreement with Emodi, handed
back the business to the latter without the knowledge of the bank. The bank now sued the
appellant as guarantor of Emodi‟s debt to it (about 28000 pounds) relying on a deed under seal

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containing the agreement between Emodi and the appellant. It was quite clear from the terms and
content of the document, that it was an agreement between Emodi and the appellant only. The
bank was never a party to it. It was held that not being a party to it, the bank could not acquire
rights under it. A similar decision was reached in Etco (Nig) Ltd v Western Nigeria
Development Corporation.

Advising the parties, in the instant case, the doctrine of Privity will preclude GT Bank
from suing Best Managers because they were not privy to the contract between Mr. Just and Best
managers and cannot sue to enforce rights arising out of the contract as seen in the decision
reached in Chuba Ikpeazu v African Continental Bank. Instead, the bank should sue Mr. Just
over his failure to perform his obligation under the loan agreement. Thus, while the bank cannot
sue Best Managers by virtue of the doctrine of privity, it can sue Mr. Just instead.

6. Discuss the existing approaches for the incorporation of implied terms into an existing
contract.

All contracts are concluded according to established practices in the commercial, social
and economic sphere of a society. These practices, therefore, constitute an accepted and
recognized part of a contract which applies even though not expressly declared so by the parties.
These usages have been supplanted for reasons of public policy and the promotion of commerce
by statute law. The courts also apply these terms to ensure business efficacy when they are not
expressly mentioned by the parties. It should be noted that where parties expressly exclude the
application of these terms, the court will not apply them in the contract. These terms are called
implied terms. There are three types of implied terms: (a) terms implied by custom or trade; (b)
terms implied by statute; (c) terms implied by courts.

(1) Terms implied by custom or trade: A contract is subject to terms sanctioned by customs,
whether commercial or otherwise, although such terms have not been expressly mentioned in the
January 1, 2017

contract. The principle and its mode of application were spelt out by Park B. in Hutton v
Warren. Thus in British Crane Hire Corporation v Ipswich Plant Hire Ltd, the Court of Appeal
held that the term which was contained in the document was incorporated into the contract being
a trade usage common which both parties were aware of even though it was not signed.

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 As noted above, a custom is implied if it has not been expressly or implicitly excluded by
the contract and where the usage is well-established and notorious, that both parties to the
contract are either familiar with it or must be presumed to be familiar with it. In Les Afferteuurs
Reunis Societe Anonyme v Walford, it was held by the House of Lords, in an action for specific
performance of a brokerage agreement by the defendant, that he was entitled to the payment of
the commission as the application of the custom would contradict the express terms of the
contract. A similar decision was reached in Gottschalk v Elder Dempster & Co. Ltd and
Leyland (Nig) Ltd v Dizengoff.

(2) Terms implied by statute: Over a long period of time, courts gradually accepted and enforced
certain terms into contracts (mainly for the sale of goods) even though they are not expressly
stipulated. The Sale of Goods Act in sections 12 to 15 imply certain terms into all contracts for
sale of goods unless expressly excluded. The terms implied are as to title, description, and
suitability for purpose, sample and merchantable quality.

a) Implied condition as to title: By section 12(1) of the Act, in any contract for the sale of goods,
there is an implied condition on the part of the seller that in the case of a sale, he has the right to
sell the goods, and that in the case of an agreement to sell, he will have the right to sell the goods
at the time when the property is to pass. The seller is also deemed to give an implied warranty
that the buyer shall enjoy quiet possession of the goods and another warranty that the goods are
free from any charge or encumbrance in favor of a third party. Thus, a seller with a defective title
would be in breach of this obligation. In Akosile v Ogidan, the right of the defendant to transfer
the car to the plaintiff was defective as the person from whom he had purchased the car from had
stolen the car. A similar decision was reached in Rowland v Divali on similar facts.

(b) Sale by description: By section 13 of the Sale of Goods Act, when goods are sold by
description, there is an implied condition that they shall correspond with the description and if
sale is by sample as well as by description they must still correspond with the description as well
January 1, 2017

as the sample. Usually, this condition applies where the buyer has not seen the goods and relies
on the sellers‟ description. In Varley v Whipp, an old reaping machine was described by the
seller as a new one. The buyer who relied on this description and bought the machine without
first seeing it was allowed to rescind the contract and recover his money. It should be noted that
even where the buyer has seen the goods, as long as he relies on the seller‟s description to buy,

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the condition still applies. In Beale v Taylor, a car was sold by the defendants to the plaintiff was
described as a 1961 Triumph Herald turned out to be the front of a 1948 model welded to the
rear of a 1961 model. Although the plaintiff saw the car before the sale, he was allowed to
rescind for a breach of condition (see also Ogwu v Leventis Motors).

(c) Fitness for purpose: Section 14 starts by stating the basic common law position that there is
no implied warranty or condition as to the quality or fitness for any particular purpose of goods
supplied under a contract of sale. However subsection 1 provides that where the buyer informs
the seller of the particular purpose the goods are required so that the sellers skills and judgment
is relied on, there is an implied condition. If such goods can only be used for one purpose, such
information would not be necessary. In Grant v Australian Knitting Mills, the plaintiff was
affected by dermatitis after wearing under pants manufactured by the defendants. It was held that
there was no need to specify the particular purpose for which a buyer needed the goods where
there is only one purpose for which anyone would ordinarily want them. Where the goods are
required for various purposes, the buyer is obliged to indicate the particular purpose for which he
needs the goods. In DIC Industries v Jimfat (Nig) Ltd, the wire coils supplied by the defendant
were capable of being used for a variety of purposes. It was held that the condition as to fitness
for purpose did not apply as the defendant failed to inform the plaintiff the particular purpose for
which he needed the goods.

(d) Merchantable quality: By section 14(2) of the Sale of Goods Act, goods bought by
description from a seller who deals in those goods must be of merchantable quality. The
condition however, does not apply if the buyer has examined the goods and fails to detect defects
which such examination ought to have revealed. The common law requirement is satisfied if the
good is fit for any purpose for which the goods is normally used. Thus in Khalil and Dibbo v
Mastronikolis, the appellants bought a large quantity of engine oil from the respondents.
Although they had intended the oil for use in internal combustion engines, they never
January 1, 2017

communicated their intention to the respondents. They now brought an action for breach of the
implied condition as to fitness for purpose. It was held that since the purpose for use was not
communicated to the respondents and the oil could be used for other purposes, there was no
breach of the condition.

(e) Sale by sample: Section 15 of the act provides that in a contract of sale by sample

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 (i) there is an implied condition that the bulk shall correspond with the sample in
quality;

(ii) there is an implied condition that the buyer shall have a reasonable opportunity of
comparing the bulk with sample;

(iii) there is an implied condition that the goods shall be free from any defect,,
rendering them un-merchantable, which would not be apparent on reasonable
examination of the sample.

It should be noted that a sale is not one by sample unless it is so stated (either expressly or
implicitly) in the contract. Also note that a breach of these implied terms according to section 11
of the Act entitles the injured party to damages.

(3) Terms implied by courts: Courts have found it necessary to imply certain unexpressed terms
into the contract to guarantee business efficacy. This power is not unfettered because they cannot
impose these terms arbitrarily but can do so under certain guidelines or rules. The controlling test
was stated by Mackinnon L.J in Shirlaw v Southern Foundaries Ltd where he noted that if
parties to a bargain leaves certain terms out of the bargain and an officious bystander were to
suggest some express provision for it in their agreement, they would readily accept the
provisions of such terms as applying, then the court can apply such provisions. Glanville
Williams identifies three kinds of terms that may be applied:

(i) Terms that the parties probably had in mind but did not trouble to express

(ii) Terms that the parties, whether or not they actually had in mind, would
probably have expressed if the question had been brought to their attention

(iii) Terms that the parties, whether or not they had them in mind or would have
expressed them, if they had foreseen the difficulty, are implied by the court because of
January 1, 2017

the court‟s view of fairness or policy or in consequence of a rule of law.

These are the tests which are implied by the courts and they have been applied in Okotete
v Electricity Corporation of Nigeria where the court held that although the contract did not
expressly stipulate that the plaintiffs were to cut down the trees o the route, there was an implied

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term to that effect, in Ghandi v Pfizer, the court held that in the contract between the parties,
there is an implied term that the appointed dealer would be supplied with the product of the
employer and that the failure to supply such products within a reasonable time, or at all would
constitute a breach of that condition. (See also Re Comptoir Commercial Anversoirs & power,
Son & Co. and West African Automobile & Engineering Co. Ltd v Saba Balogun).

It should be noted, as was held in the case of Liverpool City Council v Irwin, a court will
not imply a term which it does not consider necessary for the proper functioning of the contract.

The above are the terms that can be implied into a contract even though it was not
expressly mentioned in the contract.

January 1, 2017

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 FIRST SEMESTER, 2011/2012

CIL 201: LAW OF CONTRACT 1

1. On the 20th of February, James Haruna offered to lease a 5 bedroom flat from Lagos State
Housing Authority (LASHA) for 10 years. The offer letter boldly headed “subject to contract”.
LASHA accepted the offer on 28th February 2012 and added that the lease will commence on the
25th of March 2012. On the 10th of March 2012, James Haruna wrote another letter to LASHA
demanding that the main water system, electricity, plumbing system and sewage disposal
facilities have to be in good working condition before he can take possession. LASHA complied
with all the demands of James Haruna. He later informed LASHA that he was no longer
interested in leasing the apartment. Being aggrieved, LASHA is proposing to institute an action
against James Haruna.

Using relevant legal authorities,

(a) Identify the issue(s) involved in the above case and state the applicable legal principle(s)

(b) Analyze the chances of LASHA succeeding in its intended court action; an

(c) Explain the defences, if any available to James Haruna.

2. With the aid of relevant judicial decision, discuss the various ways by which an offer may be
brought to an end.

3. In January 2012, Maria Pinkett, the Chief Executive of a multi – million dollar
Telecommunication Company operating in 50 countries around the world is seeking a clean
energy solution that can make her operations cost effective due to the high cost of power. She
stated in a worldwide press conference that her company will pay $ 5 million to any person who
is able to come up with an effective and innovative power solution that is able to reduce the cost
January 1, 2017

of operations by 40% at each of her company‟s base stations before June 1 2012. To demonstrate
her commitment, the said amount had been secured in a dedicated Escrow account with Citibank
in New York. Interestingly, Bola and Bayo, two final year Engineering students at Unilag have
recently finalized an innovation power solution that reduces the cost of power based stations by
40% as their final year project, and are about to sell their new technology to the MTN Nigeria.

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Bola and Bayo went to the MTN‟s office to offer the technology for N 2 million, but the research
and development department wrote a letter to them agreeing to pay N 500,000 only. On May 28,
2012, while Bayo and Bola were waiting for MTN‟s research manager in the MTN reception
lobby to deliver their letter agreeing to MTN‟s terms, they learned of Maria Pinkett‟s offer on
CNN.

Advise the parties

4. “All contracts are concluded within the context and framework of established practices in the
commercial, social and economic culture of a society. These practices, therefore, constitute an
accepted and recognized part of a contract to which they ate relevant without a formal and
express declaration by the parties to that effect”. – Prof I.E. Sagay

With the aid of decided cases, discuss the statement above.

5. Miss Tinuade, a Nigerian girl of 17 years approached Alhaja Bintu, a prominent trader in
Alaba Market, Lagos and persuaded Alhaja Bintu to supply her goods worth N 50000 on credit
for trading purposes. Miss Tinuade promised to pay Alhaja Bintu after selling with the hope of
making some profit. A few days later, robbers attacked Miss Tinuade and took away all the
money she had realized from her trade as a result of which she could not repay Alhaja Bintu as
promised. Advise the parties. Would your answer be any different if Miss Tinuade had
fraudulently told Alhaja Bintu that she was 19 years old?

6. The terms “exclusion clause” and “limiting clause” have basic distinction which some
practitioners do fail to appreciate.

Against the background of the above statement, discuss with the aid of decided cases, the
distinction between these and any similar term(s). Explain why it is important to make the
distinction.
January 1, 2017

ANSWERS

1. The above question raises the issue of the effect of the “subject to contract” clause in a
contract.

Whether or not LASHA can succeed in its proposed suit against John Haruna.

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 An offer becomes binding when it is accepted by the party to whom it is addressed.
Acceptance is a final. It is a final, unqualified and unequivocal expression of assent to the terms
of the offer as conveyed by the offeror. It is also a promise or act on the part of the offeree
indicating willingness to be bound by the terms and conditions contained in an offer. It is a finite
and unqualified assent to the terms as conveyed by the offeror. The offeree ought to have made
up his mind. In Orient Bank v Bilante Int’l Ltd, Niki Tobi describes acceptance as the reciprocal
act or action of the offeree to the offer in which he indicates his agreement to the terms of the
offer as conveyed to him by the offeror. It is an act of compliance with the terms of the offer. It
is the element of acceptance that underscores the bilateral nature of contracts. The learned Justice
of the Court of Appeal (as he then as) went to describe the various ways by which acceptance
can be manifested namely

o By the conduct of the parties

o By their words
o By documents passing between them

Thus, acceptance must be communicated to the offeror as mere intention to accept or

silence cannot constitute acceptance (Felt house v Bindley)

However, there are certain situations in which there is an apparent acceptance of an offer
but which terms turn out to be invalid and ineffective. They include counter offer, conditional
acceptance, cross offer, acceptance in ignorance of the offer, acceptance of tenders.

Conditional Acceptance – Acceptance subject to contract: A conditional offer is not a valid or

binding acceptance. Any acceptance which is made subject to a condition cannot create a binding
contract until that condition has been fulfilled. Thus conditional acceptance does not constitute
acceptance. As regards enforceability, the first document is not worth the paper it is written on. It
is merely a proposal to enter into contract, a transaction which is a legal nullity and it may be
January 1, 2017

disregarded by either party with impunity. Until the completion of the formal contract, both
parties enjoy a locus poenitentiae (point of repentance). Thus in Winn v Bull, the defendant
agreed to take a lease of a house “subject to the preparation and approval of a formal contract”. It
was held that in the absence of a formal contract the agreement was not binding. Thus, in
Chillingworth v Esche, it was held that an agreement to purchase free hold land “subject to a

236
proper contract to be prepared by the vendor‟s solicitor” was not a valid agreement. Similarly, in
Tiverton Estates Ltd v Wearwell Ltd, the plaintiff contended that the defendant was bound by an
agreement under which he agreed to sell land “subject to contract”. It was held that it was not
binding. It is still invalid even if the full purchase price is paid. In Maja Junior v UAC, an
agreement to buy the defendant‟s port “subject to contract” was held to be invalid despite the
payment of the purchase price.

Also in UBA v Tejumola and sons which is similar to the issue raised above, the
defendant/appellant who offered to take lease of the plaintiff‟s property for a period of 15 years
at a rent of N 215 per square metre. The letter was boldly headed “subject to contract” and that
the lease was to take effect from the date “physical possession of the property is given to us”. In
accepting the offer, on the same day, the plaintiff specifically stated that the lease would
commence from the 1st of May 1982. The defendant neither expressly refused nor accepted this
date. What followed was a series of expensive demands by the defendant including, amongst
other things that the plaintiff ensure that all main services i.e. main water, mains electricity,
plumbing system, and sewage disposal facilities were in good working condition. After all the
conditions were met, the defendant wrote to the plaintiff, repudiating the agreement. At the trial
court and the Court of Appeal, it was held that there was a valid contract. The Court based its
premise on the lease commencement date of 1st of May as negating the effect of the term
“subject to contract”. However, the Supreme Court, setting aside the judgment of the lower
court, took the firm view that although there existed all the relevant terms of a contract of lease
i.e. the name of the parties, the rent, etc, the effect of the term subject to contract according to
Obaseki J.S.C, is that until a formal contract is drawn up and executed, everything is in the
negotiation. Similarly, Odufunade v Ososami which is similar with the issue at hand, the
plaintiff offered to find a buyer for the defendant‟s building provided that the defendant would
allow him claim as commission any amount over 12000 pounds that the defendant wanted for the
building. The defendant replied: „I would like to confirm my tentative agreement without
January 1, 2017

engagement to accept an offer not less than 12000 net to myself to be paid by your clients… It is
further understood that any amount by which your clients may be disposed to increase the offer
to cover your commission will be credited to your account‟. Eventually, the defendants decided
to deal directly with the plaintiff‟s clients and sold the building to them for 20500 pounds. The
plaintiff sued the defendant for breach of contract. It was held that the words used in the contract

237
postponed liability or legal relationship between the parties until an enforceable contract comes
into existence and that the defendant was within his legal right to revoke the agreement.

In applying the above legal principles, it can be said that the existence of the term
“subject to contract” as contained in the agreement between James Haruna and LASHA acts as a
bar for the enforceability of the agreement irrespective of the proposed date of the
commencement of the lease as stated by LASHA. Accordingly, it is submitted that the existence
of the term” subject to contract” bars the enforceability of the agreement. Hence, James Haruna
is not bound to take the lease.

On LASHA‟s chances, LASHA cannot successfully sue to enforce the contract going by
the decision of the court in UBA v Tejumola & Sons because of the existence of the “subject to
contract” clause in the agreement.

Also, on the defences available to James Haruna, it is submitted that the defence of the
effect of the term “subject to contract” constitutes a veritable defence for James Haruna going by
the decisions of the court stated above. The effect of the term according to Obaseki J.S.C is that
such presupposes that until a formal contract is drawn up and executed, everything is in the
negotiation stage.

2. Revocation of an offer.

Under the law of contract, the following circumstances have been held, as a means of
terminating a contract. They are:

 By revocation
 By Lapse of time
 Death of the offeror or offeree
 By rejection
January 1, 2017

a. Revocation: The law is straight forward and clear that an offer can be revoked (by the offeror)
anytime before acceptance. The rationale here, as asserted by Prof. Ataiyah, is that “until an
acceptance, there is nothing but a revocable offer which binds nobody”.

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 Hence, where there is a revocation of an offer before acceptance, the offeror is
completely absolved of any liability, even if he promises to keep the offer open for a specific
period of time and still revokes it. The principle was first established in Payne v Cave, and
reiterated in Routledge v Grant where the defendant offered to buy a house from the plaintiff and
gave the latter 6 weeks in which to accept. The defendant withdrew the offer three weeks later
while the plaintiff purported to accept it at the end of 6 weeks. It was held that there was no
contract because the offer had been validly withdrawn after three weeks and the subsequent
acceptance was invalid. In order for a revocation to be valid, it must be communicated i.e. notice
of such revocation must reach the offeree before acceptance. In Bryne v Van Tien Hoven, the
defendant posted a letter of offer on the 1st October. On the 8th, the defendants posted another
letter revoking the offer. On October 11th, the plaintiff telegraphed their acceptance and this
letter was posted on October 15th. On October 20th, the letter of revocation reached the plaintiff.
It was held that the revocation was invalid, and a binding contract came into existence on the 11th
when the telegraph was sent by the plaintiff. Thus, a letter of a revocation does not take effect
from the moment of posting but from the moment of delivery.

b. Lapse of Time: The expiration of the time frame apportioned for acceptance, would also
occasion the termination of an offer. Where, however, no specific time is prescribed by the
offeror, the offer will be terminated after a reasonable lapse of time. In Ramsgate Victoria Hotel
v Montifore, it was held that the period of 6 months constituted a reasonable lapse of time for the
sale of company share. It should be noted that the nature of the subject matter is the determining
factor under this.

c. Death: Where in the event that the offeree, before his acceptance has notice of the offeror‟s
death, he cannot validly accept the latter‟s offer. When however, such acceptance is made in
ignorance of the offeror‟s demise, the validity of the acceptance is dependent on the nature of the
contract. Thus, where the contract can be performed by the offeror‟s estate, the offer will not still
January 1, 2017

be valid. In Bradbury v Morgan, one J.M. Leigh wrote to the plaintiff requesting them to give
credit to a 3rd party promising to grant the repayment. After Leigh died, the plaintiffs, who were
ignorant of his death, continued to grant credit facilities to the 3rd party. The plaintiff sued the
executors of the deceased‟s estate when they refused to repay the debt resulting from the
granting of the credit given the 3rd party after Leigh‟s death. It was held that since the contract

239
did not require the personal performance of the deceased offeror, the executors were liable to pay
the guarantee.

With regards the death of an offeree, an offer lapses if the offeror dies before it is
accepted and this was applied in the case of Kennedy v Thomassen where it was held that the
acceptance of an offer to sell annuities by the solicitors of the deceased was invalid as a result of
the demise of their client.

d. Rejection: Where the offeree expressly or impliedly expresses his willingness to contract, then
it will be a rejection of the contract. Also a variation or modification of the original offer by the
offeree i.e. a counter offer will also be deemed to be a rejection. Also note that rejection will not
be in operation until it is communicated.

The above stated are ways by which a contract can be brought to an end.

3. The issues for legal determination are:

i. Whether or not Maria Pinkett‟s press release constitutes an offer

An offer is a definite promise to be bound by certain terms stipulated within the contract
provided that these terms are accepted. It is a definite or promise made by one party with the
intention that it shall become binding on the party making it as soon as it is accepted by the party
to whom it is addressed. An offer must be precise and unequivocal, leaving no room for
speculation or conjecture as to its real content in the mind of the offeree. Treitel defines offer as
an expression of willingness to contract on certain terms made with the intention that is shall
become binding as soon as it is accepted by the person to whom it is addressed. It is a statement
of terms on which the offeror is willing to be bound.

An Invitation to treat expressed in the Latin maxim invitatio ad offerendum means

invitation to offer. It is, according to Prof. Andrews Burrows, an expression of willingness to
January 1, 2017

negotiate. A person making an invitation to treat does not intend to be bound as soon as it is
accepted by the person to whom the statement is addressed. It is an offer to receive offers. As
stated by Bowen L.J in Carlill v Carbolic Smoke Ball co., a person making an offer becomes
“liable to anyone who, before it is retracted performs the condition…” whereas by contrast, in
Invitation to treat, “… you [the offeror] offer to negotiate, or you issue advertisements… Such

240
advertisements are offers to negotiate – offers to receive offers – offers to chauffeur. The
important thing to note is that an invitation to treat not being an offer, but being a phenomenon
preliminary to the offer, is not capable of an acceptance which will result in a contract”. An
exception to the rule, however, is where the advert is made for the purpose of a unilateral
contract and if a consideration consists of actual performance in return for the promise, then it
becomes a valid offer and once performance is done, there is a binding contract. Here, relevant
authorities posit that such representations are offers and are accepted upon performance of the
condition. In Carlill v Carbolic Smoke Ball Co, which is similar to Maria Pinkett‟s offer, a
promise to pay 100 pounds to anyone who uses their smoke ball for a minimum of two weeks
and still caught influenza and as a sign of good faith, they had deposited 1000 pounds with a
bakn, was held to hold the company liable to the plaintiff for the 100 pounds promised. On the
argument by the defendant that an offer cannot be made to the whole world and that acceptance
had not been communicated, it was held that an offer could be made to the whole world and in
relation to unilateral contract, there was no need as the company had waived this by putting a
condition which if performed becomes a sufficient consideration on the part of the party
performing the condition.

Applying the above, it is submitted that Maria Pinkett‟s press release, though prima facie,
is an advert, is a valid offer and anyone who performs the condition will be able to enforce the
contract.

ii. Whether or not MTN‟s purported acceptance is valid.

An acceptance is said to be an expression of assent by the offeree, stating that he agrees

that he agrees to the terms of the offer as conveyed by the offeror. It is trite that an acceptance
must be unqualified, unequivocal, without any variation with the original offer. It must be a
mirror image of the original offer unless it will be invalid. Thus, for instance, a counter offer is
not a valid acceptance. In Hyde v Wrench, it was held that a modification by the plaintiff of the
January 1, 2017

defendants offer of 1000 pounds for his estate for 950 pounds was a counter offer and destroys
the original offer which he purported to accept. Similarly, in Major General George Innih
(RTD) & Ors v Ferado Agro and Consortium, the 3 weeks extension sought by the respondents
instead of 3 days was held to be a counter offer. In applying the above, it can be said that the
counter offer of N 500,000 instead of the N 2 million originally offered by Bola and Bayo

241
invalidates any agreement between them. Conclusively, it is submitted that MTN‟s purported
acceptance to pay N 500,000 instead of N 2 million as offered by Bola and Bayo, constitutes a
counter offer and removes any obligations between them and MTN.

iii.Whether or not Bola and Bayo‟s intention to accept constitutes a valid acceptance.

One of the rules of acceptance, in relation to bilateral agreements, is that it must be

communicated to the offeror. This was applied in Felt house v Bindley, where it was held that a
mental note to accept is not a valid acceptance as long as it is not communicated. In this case, the
nephew‟s intention to accept did not constitute an acceptance. Also, acceptance by post as held
in the case of Adams v Lindsell, takes effect once the letter of acceptance is posted. Where it is
not posted, there is no acceptance.

Thus, applying the above principles, it can be said that non-communication of the
acceptance of the offer either by words or by conduct vitiates the rule of acceptance. Also, since
they had not posted their letter of acceptance, so there is no acceptance of the counter offer of N
500,000

Advising Bola and Bayo,

They are at liberty to accept or reject MTN‟s offer as there is no agreement between
them. They are advised to opt for Maria Pinkett‟s offer of N 5 million instead of MTN‟s offer.
Also, advising MTN, they have no chance of enforcing any contract on Bola and Bayo as there is
no contract to enforce between them.

4. Implied Terms

All contracts are concluded according to established practices in the commercial, social
and economic sphere of a society. These practices, therefore, constitute an accepted and
recognized part of a contract which applies even though not expressly declared so by the parties.
January 1, 2017

These usages have been supplanted for reasons of public policy and the promotion of commerce
by statute law. The courts also apply these terms to ensure business efficacy when they are not
expressly mentioned by the parties. It should be noted that where parties expressly exclude the
application of these terms, the court will not apply them in the contract. These terms are called

242
implied terms. There are three types of implied terms: (a) terms implied by custom or trade; (b)
terms implied by statute; (c) terms implied by courts.

(1) Terms implied by custom or trade: A contract is subject to terms sanctioned by customs,
whether commercial or otherwise, although such terms have not been expressly mentioned in the
contract. The principle and its mode of application were spelt out by Park B. in Hutton v
Warren. Thus in British Crane Hire Corporation v Ipswich Plant Hire Ltd, the Court of Appeal
held that the term which was contained in the document was incorporated into the contract being
a trade usage common which both parties were aware of even though it was not signed.

As noted above, a custom is implied if it has not been expressly or implicity excluded by
the contract and where the usage is well-established and notorious, that both parties to the
contract are either familiar with it or must be presumed to be familiar with it. In Les Afferteuurs
Reunis Societe Anonyme v Walford, it was held by the House of Lords, in an action for specific
performance of a brokerage agreement by the defendant, that he was entitled to the payment of
the commission as the application of the custom would contradict the express terms of the
contract. A similar decision was reached in Gottschalk v Elder Dempster & Co. Ltd and Leyland
(Nig) Ltd v Dizengoff.

(2) Terms implied by statute: Over a long period of time, courts gradually accepted and enforced
certain terms into contracts (mainly for the sale of goods) even though they are not expressly
stipulated. The Sale of Goods Act in sections 12 to 15 imply certain terms into all contracts for
sale of goods unless expressly excluded. The terms implied are as to title, description, and
suitability for purpose, sample and merchantable quality.

(a) Implied condition as to title: By section 12(1) of the Act, in any contract for the sale of
goods, there is an implied condition on the part of the seller that in the case of a sale he has the
right to sell the goods, and that in the case of an agreement to sell, he will have the right to sell
January 1, 2017

the goods at the time when the property is to pass. The seller is also deemed to give an implied
warranty that the buyer shall enjoy quiet possession of the goods and another warranty that the
goods are free from any charge or encumbrance in favor of a third party. Thus, a seller with a
defective title would be in breach of this obligation. In Akosile v Ogidan, the right of the
defendant to transfer the car to the plaintiff was defective as the person from whom he had

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purchased the car from had stolen the car. A similar decision was reached in Rowland v Divali
on similar facts.

(b) Sale by description: By section 13 of the Sale of Goods Act, when goods are sold by
description, there is an implied condition that they shall correspond with the description and if
sale is by sample as well as by description they must still correspond with the description as well
as the sample. Usually, this condition applies where the buyer has not seen the goods and relies
on the sellers‟ description. In Varley v Whipp, an old reaping machine was described by the
seller as a new one. The buyer who relied on this description and bought the machine without
first seeing it was allowed to rescind the contract and recover his money. It should be noted that
even where the buyer has seen the goods, as long as he relies on the seller‟s description to buy,
the condition still applies. In Beale v Taylor, a car was sold by the defendants to the plaintiff was
described as a 1961 Triumph Herald turned out to be the front of a 1948 model welded to the
rear of a 1961 model. Although the plaintiff saw the car before the sale, he was allowed to
rescind for a breach of condition (see also Ogwu v Leventis Motors).

(c) Fitness for purpose: Section 14 starts by stating the basic common law position that there is
no implied warranty or condition as to the quality or fitness for any particular purpose of goods
supplied under a contract of sale. However subsection 1 provides that where the buyer informs
the seller of the particular purpose the goods are required so that the sellers skills and judgment
is relied on, there is an implied condition. If such goods can only be used for one purpose, such
information would not be necessary. In Grant v Australian Knitting Mills, the plaintiff was
affected by dermatitis after wearing under pants manufactured by the defendants. It was held that
there was no need to specify the particular purpose for which a buyer needed the goods where
there is only one purpose for which anyone would ordinarily want them. Where the goods are
required for various purposes, the buyer is obliged to indicate the particular purpose for which he
needs the goods. In DIC Industries v Jimfat (Nig) Ltd, the wire coils supplied by the defendant
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were capable of being used for a variety of purposes. It was held that the condition as to fitness
for purpose did not apply as the defendant failed to inform the plaintiff the particular purpose for
which he needed the goods.

(d) Merchantable quality:By section 14(2) of the Sale of Goods Act, goods bought by
description from a seller who deals in those goods must be of merchantable quality. The

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condition however, does not apply if the buyer has examined the goods and fails to detect defects
which such examination ought to have revealed. The common law requirement is satisfied if the
good is fit for any purpose for which the goods is normally used. Thus in Khalil and Dibbo v
Mastronikolis, the appellants bought a large quantity of engine oil from the respondents.
Although they had intended the oil for use in internal combustion engines, they never
communicated their intention to the respondents. They now brought an action for breach of the
implied condition as to fitness for purpose. It was held that since the purpose for use was not
communicated to the respondents and the oil could be used for other purposes, there was no
breach of the condition.

(e) Sale by sample: Section 15 of the act provides that in a contract of sale by sample

(i) there is an implied condition that the bulk shall correspond with the sample in
quality;

(ii) there is an implied condition that the buyer shall have a reasonable opportunity of
comparing the bulk with sample;

(iii) there is an implied condition that the goods shall be free from any defect,,
rendering them un-merchantable, which would not be apparent on reasonable
examination of the sample.

It should be noted that a sale is not one by sample unless it is so stated (either expressly or
implicitly) in the contract. Also note that a breach of these implied terms according to section 11
of the Act entitles the injured party to damages.

(3) Terms implied by courts: Courts have found it necessary to imply certain unexpressed terms
into the contract to guarantee business efficacy. This power is not unfettered because they cannot
impose these terms arbitrarily but can do so under certain guidelines or rules. The controlling test
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was stated by Mackinnon L.J in Shirlaw v Southern Foundaries Ltd where he noted that if
parties to a bargain leaves certain terms out of the bargain and an officious bystander were to
suggest some express provision for it in their agreement, they would readily accept the
provisions of such terms as applying, then the court can apply such provisions. Glanville
Williams identifies three kinds of terms that may be applied:

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 (i) Terms that the parties probably had in mind but did not trouble to express

(ii) Terms that the parties, whether or not they actually had in mind, would
probably have expressed if the question had been brought to their attention

(iii) Terms that the parties, whether or not they had them in mind or would have
expressed them, if they had foreseen the difficulty, are implied by the court because of
the court‟s view of fairness or policy or in consequence of a rule of law.

These are the tests which are implied by the courts and they have been applied in Okotete
v Electricity Corporation of Nigeria where the court held that although the contract did not
expressly stipulate that the plaintiffs were to cut down the trees o the route, there was an implied
term to that effect, in Ghandi v Pfizer, the court held that in the contract between the parties,
there is an implied term that the appointed dealer would be supplied with the product of the
employer and that the failure to supply such products within a reasonable time, or at all would
constitute a breach of that condition. (See also Re Comptoir Commercial Anversoirs & power,
Son & Co. and West African Automobile & Engineering Co. Ltd v Saba Balogun).

It should be noted, as was held in the case of Liverpool City Council v Irwin, a court will
not imply a term which it does not consider necessary for the proper functioning of the contract.

The above are the terms that can be implied into a contract even though it was not
expressly mentioned by the parties in the contract.

5. Capacity to Contract

The issues arising for legal determination are:

a. Whether or not Miss Tinuke has the capacity to contract

It is trite under common law that infancy ends at the age of 21 years. This position is
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further buttressed by the Infant Relief Act 1874, a statute of general application, which also
reiterates this position. Thus, in Labinjoh v Abake, the defendant, an eighteen year old girl
bought goods from the plaintiff, an adult trader. Upon failure to pay the balance due to the
plaintiff, he sued her for the balance. It was held by the “Full Court” equivalent to the Supreme
Court, that in so far as the Infant Relief Act 1874 is concerned, being a statute of general

246
application, the defendant was a minor; hence she was not liable as the agreement was void and
not enforceable on her.

In applying the above, it is submitted that Miss Tinuade being a 17 year old girl is clearly
an infant as she has not reached the age of 21 years.

b. Whether or not Miss Tinuade can be held liable for the goods supplied as a result of
misrepresentation of her age

Under common law, if an infant fraudulently misrepresents his age by deceiving the other
party that he is over 21 years, and if on the basis the other party contracts with the infant, the plea
of infancy and all privileges associated with it is still open to the dishonest infant. An infant
would normally be liable for a tort if he commits the tort of deceit, if the claim in tort arises out
of a contract upon which the infant would not be liable. Thus, in Jennings v Rundall, where an
infant having hired a horse injured it by riding it too hard, it was held that he was not liable in
tort for negligence. The contract for the hire of the horse was void. Also in Johnson v Pye,
where an infant obtained a loan by falsely misrepresenting his age, he could not be made liable in
damages for deceit. But in certain cases, equity will grant relief against the infant, by compelling
him to restore his ill-gotten gains or to release the deceived from obligations in law induced by
fraud. The equitable doctrine which makes this possible is known as the doctrine of Restitution,
for the Act is not to be used as an engine for fraud.

However, at common law, although Miss Tinuade fraudulently misrepresents her age,
being an infant, she cannot be liable to Alhaja Bintu even in tort because the deceit in this case
arose out of a void contract.

6. Distinction between an exclusion clause and limiting clause

One of the fundamental principles of the law of contract is the freedom of contract which
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allows parties to a contract to decide how they want to enter into a contract without any form of
interference. Thus, a party may decide to limit or exclude his obligations under the contract. For
instance, a seller of goods can exclude the operation of all the terms implied by the Sale of
Goods Act by the insertion of the appropriate clauses. Exclusion clauses are used to totally
exempt liability of the party in whose favor it is inserted as opposed to limiting clause which

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aims at reducing liability to the extent spelt out in the contract. They are found mostly in
standard form contracts such as insurance contract etc. For instance in L’estrange v Graucob, the
plaintiff signed a form printed by the sellers of an automatic slot machine which she was
ordering from them. Apart from the essential terms of the contract contained in ordinary print, an
exemption clause in very small print contained the following terms: “any express or implied
condition, statement, warranty, statutory or otherwise not stated here is hereby excluded”. The
machine, when eventually delivered, did not work satisfactorily and the buyer brought the action
against the sellers. The sellers relied on the exemption clause in their defense and the plaintiff
pleaded that at the time she signed the order form, she had not read it and she knew nothing of
the content and that the exclusion clause could not be easily read being in small print. It was held
inter alia, that the exclusion clause would apply. The party, under an exclusion clause, is denied
any compensation whatsoever in case of liability of the party in whose favour the clause is
inserted. On the other hand, a limiting term is inserted to limit liability to that which is stipulated
in the contract. Thus, no matter the amount the contract is worth, it would be limited to the
amount stipulated in the agreement. In Iwuoha v Nigerian Railway Corporation, the
plaintiff/appellant delivered three packages to the respondent at Aba for conveyance to Bukuru
near Jos. After paying for the freight, the appellant was given a waybill containing a term which
subjected the contract to the Nigerian Railway Corporation Act 1955 and Traffic
Regulations. When the train arrived at Buruku, it was discovered that two of the three packages
were missing, and the appellant, claiming that the packages contained wearing apparels, brought
a claim of N 40000 against the railway corporation. The corporation denied liability for N
40,000. It relied on its Traffic Regulation No. 9 of 1981 which inter alia limited its liability to
N 20 per package unless at the time of consignment, the value of the package was made known
to the corporation of which it was entitled to impose an additional charge or in cases where the
value exceeded 1000 pounds, to decline to accept liability beyond 10 pounds. In addition, the
Traffic regulation entitled the corporation to satisfy itself that the parcel contained the declared
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goods and that they of the declared value. In light of the above, the Supreme Court held that the
waybill was a contractual document and that the appellant was bound by its contents. Secondly,
that the conditions contained in the Nigerian Railway Corporation Act 1955 and Traffic
Regulations made there under were incorporated by reference into the contract of goods

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between the parties. Consequently, the appellant was only entitled to N 40 for his loss which was
the limiting term inserted into the contract.

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 FIRST SEMESTER, 2010/2011

CIL 201: LAW OF CONTRACT 1

1. Messrs A, B, C, D & E who were classmates in secondary school met at a reunion organized
by the school in Abuja. Mr. A, who happens to be the most prosperous in terms of position and
status was appointed as the interim chairman of the alumni association. In his acceptance speech,
he charged the members of the Association to help one another as much as they could and do
business together. In practical demonstration of his commitment to the goal, Mr. A promised to
appoint their retired principal as a member of the board of his company, in appreciation of his
devotion to the many generations of students who had passed through him. Furthermore, Mr. A
promised to sell his Prado jeep to C for N25000. Mr. A also promised to accept the sum of
N35000 from Mr. E in full and final discharge of E‟s obligation to repay him a debt of N2.5m
owed by him by him since 2008. Although E detested the reference by A to their private affairs
in a public speech, he was, however, relieved that he would be free at last from Mr. A persistent
trouble. Messrs A, B, C, D & E agreed to pay for the rental of the hall for their meeting every
month in rotation. Mr. E has failed to pay for the goods supplied to him by the firm of Mr. A on
credit, on the ground that the agreement was a social contract.

Advise the parties on the legal effect of each of the promises.

2. While it is well established that an intention to create legal relations is an essential element of
a contract, the question whether parties intend to create legal relations is a question of fact based
on the circumstance of each case.

Discuss.

3. With the aid of decided cases, discuss the general rules governing consideration.

4. Although the court has inherent power to imply certain terms into a contract between parties,
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its power to do so is not without limit.

Examine the validity of this statement.

5. To what extent does the Child Rights Act demonstrate an understanding of the common law
rules on the contractual capacity of a child for different types of contract? Do you consider the

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reduction of the contractual age in Nigeria from 21 to 18 years to be in the interest of the
Nigerian Child? Give reasons for your answer.

6. Briefly discuss the various rules developed by the court to redress the harshness of the
application of exclusion clauses in standard form contracts on the consumers. To what extent has
the court been successful in this regard?

ANSWERS

1. The issues arising for legal determination are:

i. Whether or not Mr. A‟s promise constitutes a gratuitous promise and a moral obligation.

A promise is said to be merely gratuitous where no consideration has been furnished for
it i.e. where it has not been bought with a price. Consequently, the effect, therefore, is that since
there is an absence of reciprocity, the promise cannot be enforced, as was the case in L.A
Cardoso v the executors of the late J.A Doherty. Here, the plaintiff who had mortgaged his
properties for various loans from the late Doherty. When he was unable to repay the loans, the
property passed to Doherty, who proceeded to sell them. But he did not sell the one in which the
plaintiff was living, promising to allow the plaintiff to live in it during his life time. This promise
was reiterated by the executors of Doherty‟s estate after the latter‟s death. When contrary to their
undertaking the executors subsequently tried to sell the property, the plaintiff sought a
declaration that he was entitled to live on the property for the rest of his life, and an injunction
restraining the defendant from selling it. It was held inter alia by the W.A.C.A that the
declaration and injunction would be refused on the ground that the plaintiff furnished no
consideration for the promise that he could reside in the property for life.

Also, it is trite that a moral obligation owed do not constitute valuable consideration as
there was no bargain. Thu, in Eastwood v Kenyon, it was held that a promise by a ward to her
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guardian to repay him for his contribution to her life was unenforceable. Similarly, as was held in
the case of Stilk v Myrick, performance of an existing obligation does not constitute a valuable
consideration.

Thus, applying the above, it can be said that the promise is merely a gratuitous as the
principal had not furnished any valuable consideration in return for it. He merely performed an

251
existing duty. The promise, therefore, constitutes a gratuitous promise and as such
unenforceable.

ii. Whether or not the sum of N 25000 constitutes adequate consideration for the sale of Mr.
A’s prado Jeep to B.

It is trite that in the absence of fraud, duress and misrepresentation, the court will not
question the adequacy of consideration. The courts will therefore, not inquire into the
comparative value of each respective consideration by the parties. Hence the dictum that
consideration need not be adequate but must be sufficient and capable of value in the eyes of the
law. This, in Thomas v Thomas, a consideration of 1 pound for a house was regarded a valuable
consideration. Also, in African Petroleum Ltd v Owodunni, it was held that the agreement to
pay N 400 per annum for accommodation as opposed to the market value of N 65000 was
adequate consideration.

In applying the above, it can be said that if Mr. B pays the N 25000 for the car, it will
constitute a valuable consideration irrespective of the market price of the car. Thus, it is
submitted that the payment of N 25000 for the car would constitute a sufficient consideration

iii. Whether or not the promise by Mr. A to accept N 35000 from Mr. E was valid.

It is normally considered that when a contract is made, its term is fixed. For any variation
to be binding, it must be mutual as both parties must be offer something additional. Performance
of an existing contractual obligation cannot be legal detriment to the promisee or a legal benefit
to the promisor. The general rule was applied in Pinnel’s case where it was held inter alia that
the payment of a lesser sum for an existing obligation does not constitute satisfaction for the
whole sum and the case of Foakes v Beer.

However, the exception this rule include, among others, the rule of accord and
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satisfaction. This takes the form of a compromise. Where a party is making a claim, which is
disputed by the other party, they may reach a compromise on mutually agreed terms. Once this
happens, the parties are deemed to have abandoned their original positions and can only bring
claims within the compromise or new agreement. Such a new agreement is the accord while the
respective concessions made is the satisfaction. In Adekunle v A.C.B, the appellant was the

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respondent’s former solicitor. Disputes arose between the parties over fee. The appellant
claimed that he was entitled to 10% of the cost awarded in favour of the respondent while the
respondent claimed that he was entitled to 10% of the cost actually collected. While the parties
were still in dispute, the respondent offered the appellant 150 pounds in full and final satisfaction
of the disputed claim of about 349 pounds. The appellant accepted the money and later sued for
the balance. The claim failed. It was held that the agreement under which the appellant accepted
the 150 pounds from the respondent constituted an accord and satisfaction.

Also under the rule of promissory estoppels as applied in the High Tree cases, where a
promise is made which was intended to create legal elations and which to the knowledge of the
person making the promise was going to be acted upon by the person to whom it was made, and
which was in fact acted upon, the promisor will be held bound by his promise. Also, in Tika
Tore Press v Abina, the plaintiff asked the defendant to pay the sum of 1200 pounds for a debt of
2,465 pounds when the goods remained unsold and deteriorating. It was held that they were
bound by their promise.

Thus, from the foregoing, the promise by Mr. A to accept N 35000 for the debt of N 2.5
million will constitute a valid agreement by the doctrine of promissory estoppels and Accord and
satisfaction.

iv. Whether or not the agreement between A, B, C, D and E creates an intention to enter into
legal relations.

Among situations where there is an absence of an intention to create legal relations is

intermediate situations which are neither commercial nor social/domestic agreements. Under
this, there exists a rebuttable presumption that the parties do not intend to create legal relations.
One form of this agreement is a car pool agreement where the owners of cars agree to give lifts
to their friends or work mates, and passengers in turn contribute towards maintenance of the car.
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Thus, according to UpJohn L.J., in Coward v Motor Insurers Bureau, the court will be reluctant
to uphold such agreements in the absence of evidence that the parties intended to be
contractually bound. The reasoning here, according to his Lordship is that in considering the
hazard of everyday life coupled with its encumbrances, make it most unlikely that either
contemplated that the other will be contractually bound.

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 Thus, in applying the above, it can be said that the joint agreement between Messrs A, B,
C, D and E constitutes an intermediate agreement and as such the general presumption that the
parties do not intend to be bound applies.

v. Whether or not the agreement to supply goods to Mr. E by Mr. A is a social agreement.

According to relevant authorities, there exists a rebuttable presumption in social

agreements that parties do not intend to enter into legal relations. This is because the law
presumes that such agreements as based on good faith and the relationships that fall under this
category are domestic agreements between spouses, parents and their children and social
agreements.

The supply of goods to Mr. E is a commercial agreement not only because of the goods
supplied, but because of the relationship between them which does not fall under the
domestic/social agreements category. Thus, under a commercial agreement, there is a rebuttable
presumption that the parties intend legal relations. Thus in applying the above, although Mr. A
and E are friends, the agreement to supply goods falls within the scope of a commercial
agreement and as such there is an intention to enter into legal relations between them.

Advising the parties,

i. The principal is advised to furnish a valuable consideration for the promise of employment or
get such promise in writing or under seal.

ii. Also, Mr. C is advised that the payment of N 25000 for the payment is an adequate
consideration.

iii. Mr. E is advised to pay almost immediately the N 35000 in reliance on Mr. A’s promise as
Mr. A is estopped from reverting after the promise has been made.
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iv. Messrs A, B, C, D and E are advised that the agreement to pay for the rental of the hall is not
binding on any of them,

\v. Mr. A is advised to sue Mr. E for the breach of contract as the agreement is a commercial one.

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2. Intention to create legal relations

Regardless of various academic debates as to the existence or otherwise of “intention to

create legal relations” as an element of contract, Judicial reasoning favours arguments as to its
existence. Hence, although parties are usually silent, they are presumed to exist. The courts are
usually faced with the daunting task of construing each argument for the purpose of determining
whether or not there exists an intention in law. The courts in this regard determine whether such
argument is a) domestic / social, b) commercial agreement and c) intermediate agreement.

Social or domestic agreement: There exists a strong rebuttable presumption that parties to
a social and domestic agreement do not intend to create legal relations until otherwise proved.
Illustrations of agreements are:

i) Agreement between spouses

ii) Agreement between parents and children

Thus, in Balfour v Balfour, it was held that a promise by a husband to give his wife an
allowance was not binding as he did not intend to enter into legal relations.

A rebuttal to this general presumption, however, lies where the parties do not live in amity. Thus,
in Merritt v Merritt, a promise by a husband not living with his wife to transfer the house to her
after she sets off the mortgage, was held to have the presence of an intention to create legal
relation.

With regards social agreements, the general presumption is that the parties do not intend
legal relations to exist, however, where it can be shown that great sacrifice is involved, the court
would infer the existence of an intention as was seen in Parker v Clarke where although in an
agreement a nephew and his uncle, the court held that there was an intention due to the nephew‟s
great sacrifice by selling his house, in reliance of his uncle‟s promise.
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Commercial agreement: There, in this regard, exists a rebuttable presumption that parties
in a commercial agreement intend to create legal relations. The exception, however, lies where
the promise is a mere puff as was held in the case of Weekes v Tybald, where it was held that a
father‟s promise to give who ever married his daughter 100 pounds, it was held not to be an

255
enforceable agreement as there was no intention to create legal relations. Another exception
exists where the agreement provides for an exclusion clause excluding the intention to enter into
legal relations as was applied in Amadi v Pool house where although the agreement was a
commercial one, the term stipulated that it was based on an honour clause and as such it does not
create a legal relation.

Intermediate agreement: These are agreements that can neither be described as domestic
or social engagements. Examples include a car pool agreement or similar agreements between
friends or work mates under which one party gives lifts to the others and the passengers in return
contribute towards fueling and maintenance of the car. There, in this regard, exists a rebuttable
presumption that parties here do not intend legal relations. Thus, according to UpJohn J., in
Coward v Motor Insurers Bureau, in the absence of evidence that the parties intended to be
bound contractually, the courts should be reluctant to conclude that such arrangement/agreement
intended any legal contractual relations.

Conclusively, it is submitted, from the aforesaid, the courts, for the purposes of
determining the existence of the intention to enter legal relations have to determine whether each
individual agreement falls within domestic and social agreement, commercial agreement or
intermediate situations. It is in this regard that it is said that the question of whether parties
intend to create legal relations is a question of fact based on the circumstance of each individual
case.

3. Consideration and the rules of consideration.

Something of value in the eye of the law must be given for a promise in order to make it
enforceable as a contract. This thing of value is known as consideration. An agreement that is not
under seal cannot be enforced by a party that has not furnished some consideration in support of
it, thus the rule that consideration must move from the promise. There must be some form of
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exchange or a promise for an act. In the absence of any consideration, a party cannot enforce any
agreement. The most comprehensive and applied definition of consideration was given by Lush,
J., in Currie v Misa as consisting either in some right, interest, profit or benefit accruing to the
one party, or some forbearance, detriment, loss or responsibility, given, suffered or undertaken
by the other… Thus, in order to be able to sustain an action, the plaintiff must prove either a

256
benefit conferred by him on the defendant or on someone else at the instance of the defendant, or
a detriment suffered by him (the plaintiff) in the implementation or fulfillment of the terms of the
bargain. The rules governing consideration includes:

a. Moral obligation does not constitute consideration: The first attempt to equate moral
obligation with consideration was by Lord Mansfield in1756. This was ended by the decision in
1840 in Eastwood v Kenyon where a promise by the defendant to reimburse the plaintiff for the
expenses he incurred in training her was dismissed after the court rejected the argument that
moral obligation constituted a valuable consideration. Further approval to this rule was given by
the court in Faloughi v Faloughi where the court held that natural love and affection was not a
true or real consideration as it was not capable of estimation in terms of value.

b. Consideration must move from the promise: Only a person that has furnished consideration
can sue on the promise. Absence of consideration on the part of the promise can take various
forms: (i) gratuitous gift by the defendant. In L.A. Cardoso v The Executors of the Late J.A.
Doherty, it was held that the held that the plaintiff had not furnished consideration for the
promise that he could reside in the property for life. Thus, an action based on consideration
furnished by another party will fail. In Gbadamosi v Mbadiwe, the claim of the plaintiff failed
since he was not the one who furnished the consideration towards the loan agreement. He should
not have instituted the action in his personal capacity but on the party‟s behalf. The application
of the rule that consideration must move from the promise has been applied to contracts of
guarantee in Nigeria. In Bank of West Africa v Fagboyegun, an attempt by the plaintiff to enforce
a guarantee against the defendant failed on the basis that the bank failed to give further
advances/overdraft to the debtor after the guarantee was executed. The defendant must have
given the guarantee on the basis that further advances will be given.

c. Consideration may be executed, executor but must not be past: It is executory when the offer
and acceptance consist of promises – the offeree making a promise in return for the offeror‟s
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promise. Both parties become bound in the contract prior to actual performance. It is the
exchange of promises that constitutes the contract. Actual performance will take place at a later
date. When, however, an act is performed in return for the promise, the consideration is referred
to as executed consideration. The most common example is the reward cases. Thus, the offer for
100 pounds in Carlill v Carbolic Smoke Ball Co. for someone who uses their smoke ball and still

257
succumbs to influenza is an example of executed consideration. Only one of the parties, the
offeror, has performed their obligation under the contract i.e. the offeror has furnished
consideration for the contract. The offeree is never under any obligation whatsoever where the
consideration is executory as he may or may not comply with the condition.

Where, however, the promise is given in pursuance to an already performed act, it is a

past consideration and not actionable. It may very well be that the subsequent promise was
induced by the previous bargain or transaction between the parties. Nevertheless, it remains
unenforceable against the promisor for lack of consideration. For the promisee‟s consideration is
past, having been exhausted in the previous transaction. In Re McArdle, it was held by the
English Court of Appeal that the plaintiff had completed the works on the building before the
promise to repay her was made and thus, her consideration was past. A previous transaction need
not have taken the form of a contract. It could be done as a favour done the promisor by the
promisee, which induces the latter to promise a reward. Such a promise can nevertheless not be
enforced against the maker. In Akenzua II, Oba of Benin v Benin Divisional Council, it was held
that the Oba‟s services in getting the four forest reserves released took place before the
resolution granting him exclusive use of them, and that in the absence of a prior promise on the
part of the council that the Oba would be granted any of the released areas before he got their
release, he had furnished no consideration whatsoever for the council‟s subsequent promise. The
action was, therefore, dismissed. Exception to the doctrine of Past consideration include: implied
assumpsit, section 27 (1) b of the Bill of Exchange Act and fresh acknowledgement of a statute
barred debt.

d. In the absence of fraud, duress or misrepresentation, the court will not question the adequacy
of consideration: The adequacy is not questioned by the court. In Thomas v Thomas, a promise
by a testator before his death, that his wife should continue to live in his house for the rest of her
life and confirmed by the executor, who stated that she could do so upon the payment of 1 pound
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a year, was held to be a good consideration. In African Petroleum Ltd v Owodunni, the exchange
of property worth N 65,000 per annum for N400 was held to be adequate.

e. Sufficiency of consideration: Consideration must have some value in the eyes of the law.
Value has to be pinned down to “the eyes of the law” because it is subjective from person to

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person. The tests to be applied as stated by Prof. Sagay in determining the sufficiency of
consideration are:

i. If a party surrenders at the instance of the other party what he is entitled to keep,

or refrains from exercising a right he is entitled to exercise, he has furnished a good

consideration.

ii. The consideration does not need to have any economic value, provided it is the price

demanded by the defendant for his own consideration.

iii. The consideration must be reasonably ascertainable and definite. It must not be too

vague. As was stated by Hood J., in Dunton v Dunton, a promise to be virtuous and

to act with sobriety could include notions as to disparate as the length of dress to be

worn and the quantity of alcohol to be drunk.

The above listed are the rules guiding in court in determining whether a party has furnished
consideration in order to enforce a contract.

4. Terms implied by courts: Courts have found it necessary to imply certain unexpressed terms
into the contract to guarantee business efficacy. This power is not unfettered because they cannot
impose these terms arbitrarily but can do so under certain guidelines or rules. The controlling test
was stated by Mackinnon L.J in Shirlaw v Southern Foundaries Ltd where he noted that if parties
to a bargain leaves certain terms out of the bargain and an officious bystander were to suggest
some express provision for it in their agreement, they would readily accept the provisions of such
terms as applying, then the court can apply such provisions. Glanville Williams identifies three
kinds of terms that may be applied:
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(i) Terms that the parties probably had in mind but did not trouble to express

(ii) Terms that the parties, whether or not they actually had in mind, would

probably have expressed if the question had been brought to their attention

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 (iii) Terms that the parties, whether or not they had them in mind or would
have expressed them, if they had foreseen the difficulty, are implied by the
court because of the court‟s view of fairness or policy or in consequence
of a rule of law.

According to him, of these three kinds of non-logical implication, (i) is an effort to arrive
at an actual intention; (ii) is an effort to arrive at a conditional or hypothetical intention – the
intention the parties would have had if they had foreseen the difficulty; (iii) is not concerned with
the intention of the parties.

Whilst (i) and (ii) would appear to come within the “officious bystander test” laid down
by Makinnon L.J in Shirlaw v Southern Foundaries, (iii) is clearly outside it. In Liverpool City
Council v Irwin, the House of Lords propounded a fourth test of necessity.

As noted by Lord Wilberforce in Liverpool City Council v Irwin, terms can be implied if
they are the customs of the trade or on the ground that without them the contract will not work,
but terms cannot be implied simply on the ground that they are reasonable

Restating the common law position, the court in Reigate v Union Manufacturing Co
noted that these terms will be applied if it is such a term that it can confidently be said if at the
time the contract was being negotiated someone had said to the parties, “What will happen in
such a case?” They would have replied: “Of course, so and so will happen; we did not trouble to
say that; it is too clear”. Thus, if a bystander mentioned the term to the contracting parties during
the formation of the contract, they would have agreed, without much hesitation, that such a term
will apply.

These are the tests which are implied by the courts and they have been applied in Okotete
v Electricity Corporation of Nigeria where the court held that although the contract did not
expressly stipulate that the plaintiffs were to cut down the trees o the route, there was an implied
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term to that effect, in Ghandi v Pfizer, the court held that in the contract between the parties,
there is an implied term that the appointed dealer would be supplied with the product of the
employer and that the failure to supply such products within a reasonable time, or at all would
constitute a breach of that condition. Also in Re Comptoir Commercial Anversoirs & power, Son
& Co. it was held that a court can imply into a contract a term or terms which had the parties

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adverted their minds to the situation, they would have intended to incorporate it into their
agreement. Similarly, in West African Automobile & Engineering Co. Ltd v Saba Balogun, it was
held by the Court of Appeal that there was an implied term in a hire-purchase contract for a
lorry, that the installments were to be withheld as long as the lorry, due to frequent breakdowns,
was incapable of carrying goods, which was the main purpose for its hire.

The limitations on the court‟s power to apply terms are also contained in the tests
prescribed in the cases. Thus, if the reaction to the officious bystander‟s enquiry would have
been uncertainty, disagreement or a clear “I don‟t know” by any of the two parties to the
contract, then the court cannot imply such a term. In Reigate v Union Manufacturing Co., it was
agreed between the plaintiff and the defendant company that in consideration for 1000 pounds
inter alia paid by the plaintiff to the defendant, the latter would appoint the plaintiff sole
representative for the sale of its goods in the United Kingdom, India, etc., for 7 years. The
defendant company became bankrupt and its business was sold to another company. The plaintiff
sued the company for breach of contract and the defendant, in its defence, alleged the existence
of an implied term in their contract that the agency relationship was to terminate should the
company cease to operate. The court rejected this agreement. The termination of the agency
relationship would not have been the obvious and unanimous decision of the parties in such a
situation. In this case, the parties would not have come to a consensus about what would happen
if the company should collapse. A similar decision was reached in Spring v National
Amalgamated Stevedores and Dockers.

It should be noted, as was held in the case of Liverpool City Council v Irwin, a court will
not imply a term which it does not consider necessary for the proper functioning of the contract.
The above are the terms that can be implied into a contract by the court even though it was not
expressly mentioned by the parties in the contract.

5.
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To what extent does the Child Rights Act demonstrate an understanding of the common law rules
on the contractual capacity of a child for different types of contract? Do you consider the
reduction of the contractual age in Nigeria from 21 to 18 years to be in the interest of the
Nigerian Child? Give reasons for your answer.

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6. The various rules developed by the court to redress the harshness of the application of
exclusion clauses in standard form contracts on consumers

One of the fundamental principles of the law of contract is the freedom of contract which
allows parties to a contract to decide how they want to enter into a contract without any form of
interference. Thus, a party may decide to limit or exclude his obligations under the contract. For
instance, a seller of goods can exclude the operation of all the terms implied by the Sale of
Goods Act by the insertion of the appropriate clauses. Exclusion clauses are used to totally
exempt liability of the party in whose favor it is inserted. The application of these clauses can
lead to injustice as parties can use the presence of these clauses to exploit and oppress
consumers. Over the years, the court, faced with the injustice arising from the oppressive use of
exclusion clause, has developed a complex set of rules to whittle down the scope and
effectiveness of these clauses.

The rules governing the applicability or otherwise of an exclusion clause include:

o Incorporation of terms
o Interpretation of terms

1. Incorporation of terms: The question here is as to whether the terms in question have been
incorporated into the contract. There are 3 ways to determine if an exemption term is
incorporated. They are:

o By signature for documents with the requirement of signing.

o By reasonable notice for unsigned document.
o By previous course of dealings.

- By Signature: The general rule is that where the document is signed at the making of the
contract, in the absence of fraud, duress or misrepresentation, the content becomes part of the
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contract whether the parties have read it and understood it. The principle was first applied by
Scrutton L.J in L’estrange v Graucob where the plaintiff signed a form printed by the sellers of
an automatic slot machine which she was ordering from them. Apart from the essential terms of
the contract contained in ordinary print, an exemption clause in very small print contained the
following terms: “any express or implied condition, statement, warranty, statutory or otherwise

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not stated here is hereby excluded”. The machine, when eventually delivered, did not work
satisfactorily and the buyer brought the action against the sellers. The sellers relied on the
exemption clause in their defense and the plaintiff pleaded that at the time she signed the order
form, she had not read it and she knew nothing of the content and that the exclusion clause could
not be easily read being in small print. It was held by the court that when a document containing
contractual terms is signed, then in the absence of fraud and misrepresentation, the party signing
it is bound, and it is immaterial whether he has read it or not (See also Chagoury v Adebayo).

- By reasonable notice: Where a document is unsigned, the exemption clause becomes part
incorporated into the contract where it can be established that the recipient had reasonable notice
of them. Only a court can establish the extent of reasonability of notice. The rules for
determining whether the injured party is bound by exclusion term in a document not signed by
him was first propounded comprehensively in Parker v South Eastern Ry. co. Here the plaintiff
deposited a bag in a cloak room at the defendants‟ railway station, paid the clerk 2 pence and
received a paper ticket on which was printed a number and a date and notices as to when the
office would be open, and the words „see back‟. On the other side several clauses were printed,
including, “the company will not be liable for any package exceeding the value of ten pounds”.
When the plaintiff returned to claim the bag, it could not be found. He brought a claim for 24
pounds 10 shillings for its loss, and the defendants relied on the clause limiting their liability for
the loss of property limiting their liability to 10 pounds. The trial court held in favor of the
plaintiff. The defendants appealed. The Court of Appeal laid down the guidelines for
determining liability in the case of unsigned document as follows:

o Knowledge: i) if the person receiving the ticket did not see or know that
there was any writing on the ticket, he is not bound by the

condition
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ii) if he knew that there was writing on the ticket and knew

or believes that the writing contained conditions, then he

is bound by the conditions.

o Reasonable knowledge: if he knew that there was writing on the ticket, but

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 did not know or believe that the writing contained conditions,
nevertheless he would be bound if the party delivering the
ticket to him had done all that was reasonably sufficient to
give him notice that the writing contained condition.

Criteria for reasonable notice

a. Time: Notice should be before or at the point of entering the contract. It is clear that if an
exemption clause is to be effective, notice must be given to the other party before the concluded
is concluded. In Olley v Marlborough Court, a notice of on the wall of a hotel room exempting
liability of the hotel was held to be invalid because the contract was already formed.

b. Form of notice: Notice will only be considered reasonable if it is in a document which a

reasonable person would expect to contain contractual terms (see Odeniyi v Zard & Co.). Tickets
and receipts are generally acknowledgement of payment. To prove the existence of a condition,
extra steps have to be brought to the notice of the other party that such terms exist. In Chapelton
v Barry UDC, the plaintiff wished to have 2 decked chairs from the defendant council. The
plaintiff took 2 chairs at hire price of 2 pence and obtained a ticket which he put into his pocket
without reading. The chair he was sitting on collapsed and he was injured. The defendant denied
liability relying on the provision at the back of the ticket excluding them from any liability for
any injury or damage. It was held that no reasonable person would make a receipt as anything
than an evidence of payment.

- By Previous course of dealings: Where a party has knowledge of the terms as a result of
previous course of dealings, the exclusion clause will be incorporated. In Mccutcheon v Mac
Brayne, it was held that in spite of the previous course of dealings, the agent could not be
imputed with the knowledge of the exemption clause since he never read the document and
therefore had no actual knowledge of their contents. Thus, as applied in the case above, it must
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be established by the other party that the injured party had actual knowledge of the terms not
merely that he knew that there were conditions if he never bothered to read them.

2. Interpretation of Exemption Clauses

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 Other rules and principles employed by the courts in restricting the scope and effect of
excluding and limiting terms are generally applicable to both signed and unsigned documents.
They are divided into two namely; contra-proferentum rule and fundamental breach rule.

- Contra-proferentum rule: Here, the words written documents are construed more forcibly
against the party using them. In other words, any ambiguity or uncertainty, in the meaning and
scope of an exclusion clause will be resolved against the person inserting it in the contract. The
rule of strict interpretation can be brought under this rule.

 Strict Interpretation Approach: Where the words are ambiguous, they are interpreted in
such a way least favorable to the party relying on it. Thus in Baldry v Marshall, the
plaintiff bought a car from the defendants in a contract containing a term excluding “any
other guarantee or warranty, express or otherwise. The car turned out not to be suitable
for the purpose for which the buyer needed it. The car turned out not to be suitable for the
purposes for which the buyer needed it. This constituted a breach of the implied condition
in section 14(1) of the Sale of Goods Act. It was held was held that the exemption clause
did not apply since it covered only breaches of guarantees and warranties. Te breach was
one of condition and they were thus liable (see Andrew v Singer)
 Negligence: Where a party‟s contractual liability could arise from negligence and any
other cause of action, unless an exemption clause specifically refers to negligence, it will
not be construed to cover it. Where liability could arise from both negligence and any
other course of action, unless an exception clause specifically refers to negligence, it will
not be construed to cover it. This is because the courts regard it as inherently improbable
that one party to a contract could intend to absolve the other party from the consequence
of the latter‟s own negligence. Thus in White v John Warrick, the plaintiff hired a bicycle
from the defendants. It was a term of the agreement that nothing in this agreement shall
render the owners liable for any personal injuries to the riders of the machine hired. The
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plaintiff was injured when he was thrown off the bicycle when the defective saddle
suddenly tipped over. He brought an action for negligence in tort and alternatively a
breach of contract. It was held that the exemption clause covered only liability for breach
of contract but not negligence. Thus, the defendants were also liable. In Ag Bendel v

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 UBA, it was held that the respondents were not protected by the exclusion clause because
they had acted negligently.
 Privity of contract: By the doctrine of Privity of contract, a contract cannot confer any
right on one who is not a party to the contract. Thus, an exclusion clause will not as a
rule, protect someone who is not a party to the contract in which it is contained. In Adler
v Dickson, the English Court of Appeal refused to extend the exclusion clause contained
in a contract to person not privy to the contract. A similar decision was arrived at in
Cosgrave v Horsfall.

- Fundamental Breach rule: Until the decision of the House of Lords in the Suisse Atlantique
case in 1966, it was formerly believed that a party that had committed a fundamental breach of a
contract could not rely on the exclusion clause contained in the contract. Delvin J. defines a
fundamental breach in Smeaton Hanscomb & Co v Sasson I. Setty & Sons Co. (No 1) as
something which underlies the whole contract so that if not complied with, the performance
becomes something totally different from that which the contract contemplates. The principle has
been applied in the following situations:

(1) Hire-purchase agreements: In Karsales (Harrow) Ltd v Wallis, W agreed to buy a Buick car
under a hire-purchase agreement which included the clause: “No condition or fitness for any
purpose is given to the owner or implied therein”. One night the car was towed to W‟s house by
the agent of the finance company and when W found it the next morning, parts of the car was
missing, others were broken, and it was incapable of self-propulsion. W refused to pay the
installments and was sued by the plaintiffs who relied on the exclusion clause to protect them
from obvious liability. It was held by the English Court of Appeal that an exclusion clause could
not protect them from a breach of the degree and gravity of a fundamental breach.

(2) Bailment: In Alexander v Railway Executive, the court held the defendants liable in spite of
an exemption clause excluding the defendants from liability for loss, mis-delivery or damage to
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any articles exceeding 5 pounds because they deliberately allowed an unauthorized person access
to the luggage. A similar decision was reached in Sze Hai Tong Bank v Rambler Cycle Co.

(3) Sale of Goods: As Lord Abinger stated in Chanter v Hopkins, if a man supplies beans when
he is supposed to supply peas, this is not a breach of contract but non-performance. In Ogwu v

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Leventis Motors, over an agreement to supply a one-year-old lorry but instead a four-year-old
lorry was delivered, it was held that an exemption clause in a contract only avails a party when
that party is carrying out the contract in its essential respect. Thus, the respondents were liable.

(4) Deviation cases: It has been held in several cases that a ship owner who departs from the
agreed route without justification would lose the benefit of any exemption clause inserted into
the carriage contract (Gunyon v South Eastern and Chatham Ry. Co.’s Managing Committee).

However, this position changed with the decision of the House of Lords in the Suisse
Atlantique case and received further approval in the case of Photo Production v Securior
Transport. Here, the plaintiffs, a company which owned a factory entered into a contract with the
defendants, a security company, by which the defendants were to provide security services at the
factory including night patrols. While carrying out a night visit to the factory, an employee of the
defendants deliberately started a small fire which got out of control and destroyed the factory and
stock valued at 615000 pounds. The plaintiffs sued on the grounds that the defendants were
liable for the acts of their employees. The defendants pleaded an exclusion clause contained in
the agreement which exempted them from liability in respect of acts done by their employees.
The House of Lords upheld this argument and ruled in their favor. Unless the clause excluding
liability is contained, the courts will hold the party in breach liable. Thus, the current position of
law is that an exclusion clause can avail a party in fundamental breach of a contract.

The various rules are the rules employed by the courts in redressing the harsh effects of
exclusion clause in standard form contracts.

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Constitutional law 2015/2016

1. Critically appraise the theory and practice of the following in Nigeria, with the aid of decided
cases; a) Supremacy of the Constitution; (b) Rule of Law and (c) Separation of Powers.

2. Bai is a Ghanian, Judi an Australian, Botha a South African and Chopra an Indian, who are all
Law Students attending an International Conference in Lagos. They are perplexed by the
Nigerian Constitution and democracy, and you have been nominated to educate them on the
basic concepts and practice of constitution, constitutional law and constitutionalism on the one
hand and democracy and democratization on the other.

3. The independence of the Judiciary presupposes the recognition of the specificity and
autonomy needed to perform judicial function in relation to other functions of the state. Critically
analyze the provisions in the 1999 Constitution of Nigeria (as amended) guaranteeing judicial
independence.

4. Examine the following constitutional issues in the context of the 1999 Constitution of Nigeria
(as amended) and the Electoral Act 2010. SEC was the Electoral body.

(a) DDD and CMD were the two parties in Sogbe State. SEC conducted an election between the
two parties on the 15th January 2015. Some of the officials of SEC were seen at the Town Square
two days to the election, campaigning for DDD party. Upon losing the election, CMD party has
gone to court; it alleged partisan politics on the part of SEC in the election.

(b) SEC issued a Guideline in preparation for election in Kanta State permitting any person
without a voter‟s card but whose name appears on the register of voters to vote

(c) In Maitama State, SEC declared 3rd of May for election to the Governor‟s seat. Mr. Danladi, a
prince in the State approached SEC indicating his intention to contest for the election. SEC
refused to consider his proposition. He has gone to court challenging the position of SEC.
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(d) Three political parties – PPP, KUP and MDG were the registered parties in Menah State.
Towards the Governorship election, PPP, on the 5th of February 2015, conducted the party‟s
primary amongst Messrs Metuh, Abidjan and Miss Pepple. Miss Pepple had the highest votes
and emerged winner. On the 5th of May 2015, PPP submitted to SEC, the name of Mrs. Dainty as

268
their candidate for the Governorship election. The party‟s explanation was that Miss Pepple is a
single lady. She has subsequently gone to court.

5. Comrade Tom Jones, a human right activist, has filed a suit against the Federal Government of
Nigeria (FGN) praying for an Order of Court directing the FGN to convene a Sovereign National
Conference on the ground that the 1999 Constitution is not autochthonous. As a newly employed
Counsel in the Ministry of Justice, the Attorney General requires you to write a legal opinion for
the FGN on the necessity or otherwise of a Sovereign National Conference and the
autochthonous nature of the Nigerian Constitution.

6. The knowledge and understanding of the theories of federalism as a whole is essential for a
global and effective understanding of the concept of federalism in practice. In the light of the
foregoing, identify and discuss the different theories of federalism known to you and illustrate
with concrete examples and features of some of the theories in Nigeria‟s practice of federalism.

ANSWERS

1a. Supremacy of the Constitution

Supremacy of the Constitution otherwise known as „Constitutional Supremacy‟ simply
means that the constitution is superior (both substantively and procedurally) to any law or any
other legally enforceable instrument or expression. So, where the provisions of the constitution is
in conflict with any other law, the provisions of the constitution will prevail and render such law
or legal normative expression or instrument null and void to the extent of its inconsistency. This
concept or doctrine is amongst countries with written constitutions like; USA, India, Nigeria, etc.
The concept of constitutional supremacy is entrenched in the 1999 Constitution of Nigeria by
virtue of Section 1(1) and (3) of the Constitution which jointly provide that the constitution is
supreme and superior to all other laws and any law which is inconsistent with the provisions of
the constitution shall be declared null and void and unconstitutional to the extent of its
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inconsistency.
The doctrine of supremacy of the constitution became applicable under the 1979 and
1999 Constitutions of Nigeria. This is because the 1960 and 1963 Constitutions practiced
parliamentary supremacy. This doctrine which is now applicable under our constitution was
adapted from the American Constitutional Law which practices supremacy of the constitution as

269
derived from the supremacy clause Article VI Clause 242 and the decision of the Supreme Court
in Marbury v. Madison. Also, Alexander Hamilton, one of the framers of the American
Constitution explains that there is often an irresistible tendency on the part of the legislature to
wantto absorb other arms of government. As a result, modern democracies rather opted for
entrenched constitutions which operate the concept of constitutional supremacy which thereby
limits powers of government.
Section 6(6)(b) of the constitution further entrenches constitutional supremacy by the
power of judicial review of all actions of government and persons. Thus, when any act of
government or its agencies or persons is inconsistent with the provisions of the constitution, it is
declared null and void by the courts. Thus, the Supreme Court has been able to declare void
decrees that are inconsistent with the constitution upon the coming into force of the constitution
due to the supremacy of the constitution. Thus, in A.G. Lagos State v. A.G. Federation, with the
coming into force of the 1999 constitution, the court declared the Urban and Regional
Planning Act (Decree No. 88) of 1992, null and void and inconsistent with the constitutional
arrangement for the exercise of legislative powers under the 1999 constitution. Also, in Kotoye v.
CBN and Others per Nnaemeke-Agu JSC held that the constitution is not only the supreme law
of the land but also in appropriate metaphor, the touch stone and yardstick of the measurement of
the validity of all other laws. In Fawehinmi v. Abacha, the court held that the constitution is the
supreme law of the land is superior to any other law or international treaty. Udoma JSC stated in
the case of Rabiu v. State that; “… the present constitution has been proclaimed the supreme law
of the land…” In Attorney General of Bendel State v. Attorney General of the Federation and
Others, the court declared unconstitutional the procedure by which the appropriation bill was
passed by the National Assembly. The court held in Ibidokun v. Adaralode, inter alia that the
provisions of Section 41 of the Land Use Act is contrary to that of Section 272(1) of the 1999
Constitution and that it purports to exclude the jurisdiction of the high court in relation to land
matters in rural areas, hence, it is null and void. In INEC v. Musa, the Supreme Court in
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pronouncing on the implication of the supremacy of the constitution on constitutionality of all

statutory provisions applied the „doctrine of covering the field‟ to declare void such statutory
provisions of the Electoral Act and guidelines made pursuant thereto by the INEC to the extent
of their inconsistency with the provisions of the constitution. The court has also declared and
affirmed the supremacy of the constitution in relation to exercise of legislative and executive

270
powers. An example of a case where the court did this is Inakoju v. Adeleke. In Adewole and
Ors. v. Jakande and Ors. per Omolulu-Thomas J. held that the circular proposed by the Lagos
State Ministry of Education which proposed the abolition of private primary schools in a bid to
provide equal education opportunities for all children in the state was unconstitutional, illegal,
invalid and null and void.
The doctrine of supremacy of the constitution has also been a veritable tool for the “strict
scrutiny” of all executive and administrative actions that infringe upon the fundamental rights of
citizens guaranteed under Fundamental Rights provisions of Chapter IV of the 1999
Constitution. In Ugwu v. Ararume, the court held that the right of access to court is
constitutionally guaranteed and could not be denied by any other law or rules of a political party.
Also, the courts have upheld the fundamental nature of the constitutionally guaranteed rights and
invalidated proceedings that violate the right to fair hearing. Thus, in the case of Zideeh v.
RSCSC, the court held that the source of the requirement of the respect for the right to fair
hearing is the constitution and the right cannot be easily waived or taken away by statute. The
courts have also upheld the actions that violate the constitutionally guaranteed rights. Thus, in
the case of Adams v. A.G. Federation, the court pronounced the rule of strict scrutiny of powers
which seek to deprive the citizens of their right to personal liberty.
In military or dictatorial regimes, the concept of supremacy of the constitution is always
the first to be abrogated. This is primarily because the way they assume power and their style of
governance is prohibited by the constitution. This is also a contravention of Section 1(2) of the
1999 Constitution. Thus, upon coming into power, they promulgate a constitution (suspension
and modification) decree. Thus, Section 1 of Decree No. 1 of 1966 provides that;
“subject to this and any other decrees, provisions of the constitution which are not suspended by
subsection (1) shall have effect subject to modifications suspended in schedule 2 to the decree.”
Also, in Lakanmi and Anor. V. A.G. Western State, the federal military government‟s
legislative power was seen to be supreme as the decision was reversed by Decree No. 28 of
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1970.
In conclusion, the concept of supremacy of the constitution simply places the provisions
of the constitution over and above the provisions of any other law and is common in countries
with written constitutions but is usually abrogated in military or dictatorial regimes.

b. Rule of Law

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 The concept of rule of law is considered to be the oldest of all constitutional concepts and
is one of the most basic concepts since it has given birth to other constitutional concepts. The
concept is also recognized as a synonym of law and order. The roots for the concept of rule of
law can be found in ancient Greek philosophies and its obsession with governmental powers, in
the theories of natural law. Origins and justifications for the concept of rule of law were found in
the writings of John Locke on “social contract”. He believed that the source of political power
was derived from the people and not imposed from above. According to Aristotle, “the rule of
law is preferable to that of any individual”. Bracton opined that; “the king himself ought not to
be subject to man, but subject to God and to the law, because the law makes him king”. In
Gouriet v. Union of Post Office Workers & ors, Lord Denning noted “Be you ever so high, the
law is above you”
The last stage in the development of the concept of rule of law came with the writings of A.V.
Dicey who gave the tripartite formula of:
- Absence of arbitrary power;
- Equality before the Law; and
- Enforcement of Fundamental Human Rights.
i. Absence of arbitrary power: This means that no man should be punished or made to suffer for
any law that is not known or established. Also, nobody should be punished for an offence
without notice of the commission of the offence. Where this is not the case, there is an arbitrary
exercise of power. This principle also excludes the existence of prerogative or wide, arbitrary or
discretionary powers. It also means the supremacy or predominance of regular law. This
therefore excludes the exercise of discretionary powers often wielded by administrative agencies.
This aspect of his theory has been greatly criticized especially because administrative agencies
have become a veritable fourth arm of government which deals with the implementation of
highly technical and complex matters involving immediate interests of citizens.
ii. Equality before the Law: This simply means the equality of all persons before the law and the
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equal subjection of all classes to the ordinary laws of the land as administered by the ordinary
law courts. He however allowed for some modifications here because some acts of parliament
gave judicial or quasi-judicial powers to some executive authorities. This principle is not strictly
applied in practice. For instance, Section 308 of the 1999 Constitution confers immunity on
certain persons. There are also inequalities and preferential treatments in certain professions e.g.

272
the privileges that a Senior Advocate of Nigeria enjoys as against other lawyers. There is also
circumstantial inequality which often occurs where people receive favours from whoever is
giving them because of the special relationship between them. In addition, social and economic
inequalities in society also affect the subjection of persons to the operation of the law.
iii. Guarantee of Fundamental Human Rights: The third principle is the enforcement of the
fundamental human rights usually guaranteed by the constitution. Thus, there are judicial
decisions determining the rights of private persons in particular cases brought before the courts.
According to Mowoe, from Dicey‟s three postulations, it is obvious that before the rule of law
can exist in a society, the following must be in place:
(a) Supremacy of written regular law made by the lawmakers;
(b) Certainty and regularity of laws;
(c) Absence of arbitrary or wide discretionary powers on the part of government or its
agencies;
(d) Equality before the law;
(e) Administration of the law by the ordinary law courts;
(f) Enforcement of some minimum rights.
The Diceyan formulation of rule of law has been subjected to severe criticisms by scholars.
Mowoe opines that Dicey‟s work was partly as a criticism of the French droit administrative
under which a special court was established for administrative actions. RFV Heuston is of the
view that it has been said that Dicey erred in saying that the doctrine of “rule of law” excludes
the existence even of wide discretionary authority on the part of government, and also been
criticized as an attempt to turn particular political and economic theories into a constitutional
doctrine, especially as the granting of wide discretionary powers to ministers through simple
delegation of powers is now a settled feature of legislation and the process of delegation of
powers by the Legislature under most modern constitutional governments.
It is also applicable under Nigerian Constitutional Law. For instance: the Supreme Court‟s
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decisions in Ilori v. State and Ibrahim v. State in interpreting Sections 160 and 191 of the 1979
Constitution to confer wide discretionary powers on the Attorney-General of the Federation and
the States in the exercise of the power to enter a nolle prosequi in criminal trials. In Stitch v.
A.G. Federation, it was held that the exercise of discretionary powers of the minister is subject
to judicial review, following the English decision in Padfield v. Ministry of Agriculture,

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Fisheries and Food. In Iwuji v. Commissioner for Establishment per Karibi-Whyte JSC, the
Supreme Court expounded on the law of discretionary powers. HWR Wade is of the view that
Dicey‟s views were based on a mistaken conclusion that the administrative courts of France
existed for the purpose of giving officials certain special rights, privileges or prerogatives as
against that of private citizens. This is however not the case since courts greatly compensate
citizens aggrieved about administrative actions. According to Wade, the rule of law connotes the
following in modern times; supremacy of the law, all acts of government to be conducted within
a framework of defined rules and regulations, an independent judiciary to pronounce on the
legality of government actions, equality before the law with recognized exceptions and no
punishment outside the authority of the law.
In Nigeria, under civilian rule, the function of rule of law is performed by a supreme
constitution which ensures fair hearing of trials in all cases and guarantees the preservation of
rights (except where deprivation is allowed under the provisions of the constitution) through the
subjection of all classes and persons including government and its agencies to its provisions.
The idea of equal subjection of governmental authorities and personnel and the citizens alike to
the law and the implied prohibition of exemptions based on governmental authority or position
held by any public official or arm of government is a cardinal aspect of rule of law which has
been interpreted to mean that no one should be above the law under Nigerian law as expressed in
the case of Military Governor of Lagos State v. Ojukwu. In Kalu v. The State, Oputa JSC in
espousing the principle of equality before the law aptly stated that; “it should be the same open
and even-handed justice, blind to all social distinctions and disparities in wealth and status and
no respecter of persons.”
The provisions of Section 6(6)(b) of the 1999 Constitution vests power of judicial
review on the judiciary on all actions of the legislators, ministers and administrative agencies.
The requirement of equality before the law has also been extended to mean the absence of
discrimination between individuals in governmental actions and decisions based solely on unfair
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or arbitrary grounds, such as race, colour, ethnicity, place of origin, political opinion, creed or
sex, religion and this is expressed as the social objective of Section 17 and made justiciable as a
right to freedom from discrimination in Section 42. In Aoko v. Fagbemi, the court held that
nobody could be punished for an offence that was not part of any written law as at the time it was
committed. In Shugaba Abdulrahman Darman v. Federal Minister of Internal Affairs, the

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court held that the deportation of a family member of the Great Nigeria People‟s Party and a
majority leader in the Borno state house of assembly was arbitrary, oppressive and
unconstitutional being contrary to the provisions of Section 23 and 28 of the 1979 Constitution.
In Attorney General of the Federation v. Attorney General of Bendel State, the Supreme Court
held that the procedure adopted by the national assembly in passing the appropriation bill was
unconstitutional, null and void. In other words, it is contrary to the „rule of law‟ as represented
by the constitution. In Attorney General of Abia State and Others v. Attorney General of the
Federation, the Supreme Court held inter alia, that no law enacted by the national assembly can
constitutionally or validly increase or alter the tenure of office of elected officers of the local
government except in relation to the Federal Capital Territory Abuja. In Nigerian Soft Drinks
Company v. Attorney General Lagos, the Supreme Court held inter alia, that the Ogun State
Law which sought to regulate inter-state trade and commerce was unconstitutional and the VAT
Decree 102 usurped the residual powers of the state under item 9 of the concurrent legislative
list, by purporting to deal with such trade was inconsistent with the constitution. In Doherty v.
Balewa, the plaintiff bank sought a declaration that the Commission of Tribunal and Inquiry
Act under which the commission was appointed was unconstitutional since it purported to oust
the jurisdiction of the courts and was contrary to the provisions of the constitution. The Federal
Supreme Court held that the Act was not within the legislative competence of the Federal
Parliament in so far as it purports to have effect in relation to matters and things within the
Federal competence anywhere in the Federation. Also, the general powers given to the prime
minister under Section 3(1) were held to be in excess of the powers of the parliament under the
constitution. Also, the provisions excluding inquiry by any court were unconstitutional as they
purported to limit the jurisdiction of the court. In Gov. Peter Obi v. INEC, Peter Obi was sworn
in as governor of Anambra following the result of a tribunal which unseated Chris Ngige on 17th
March 2006 and he told INEC not to conduct elections on 14th April, 2007 as the office would
not be vacant in accordance with Section 180(2a) for his four year tenure. INEC conducted
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election despite the suit in court. He lost at trial and appeal court but Supreme Court was in his
favour and Andy Uba was asked to vacate office. Also, in Ameachi v. INEC, Amaechi won the
PDP Gubernatorial elections but his name was substituted for Omelua while his suit was
pending, elections were held and Omelua was sworn in. the Supreme Court ordered Omelua to
leave office and Amaechi should be sworn in. the Supreme Court ordered Omelua to leave office

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and Amaechi should be sworn in. Also, in Edo where INEC declared Oseirhemen as winner,
after investigations, Oshiomole was sworn in and rule of law was upheld. In A.G. Bendel State
v. Aideyan, the appellant state government purportedly acquired the plaintiff respondent‟s
building. Not being satisfied, the respondent sued the state government. On appeal, the Supreme
Court held that the respondent was entitled to his building. Any act of governance which is not
covered under an enabling law is a nullity.
Although it is technically not possible for the rule of law to be in existence under a
military government because the prerequisites for such existence cannot be realized under
dictatorial rule since the manner of coming into power negates the principles of the supremacy of
the law provided for under Section 1(2) of the 1999 Constitution, the Supreme Court has held in
a plethora of cases that the rule of law is tenable under a military regime. In Military Governor
of Lagos State v. Ojukwu, the Supreme Court declared the act of the executive (military) as
executive lawlessness and held that the rule of law and due process must be observed even in a
military regime. In Lakanmi and anor. v. A.G. Western State, the court also espoused the
doctrine of rule of law under military rule. Also, in Jackson v. Gowon, the court held that if it is
proved that a particular section of the constitution will be violated by the proceedings in the
tribunal of inquiry decree, then, of course, whether there is a provision that no court of law
should inquire into such proceedings then one would be bound to declare that such a proceeding
is invalid and unconstitutional.
In conclusion, the rule of law is the most basic of all public law concepts and is the bond
that binds a democratic society and has even been held to be in existence in a military or
dictatorial regime.

c. Separation of Powers
The doctrine of separation of powers is fundamentally a doctrine opposed to the concentration of
state sovereign powers in a single person or body of persons, since that may lead tot they tyranny
and threat to democratic governance, and this doctrine has been expressed in stronger or weaker
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form in many constitutions. It is seen as one of the devices used by Anglo-American system of
government to protect the rule of law and prevent the exercise of arbitrary power by the
sovereign. The concept stemmed from the writings of Locke and Montesquieu. The former
argued that it is foolhardy to give lawmakers the power to execute laws made by them because,
in the process, they may exempt themselves from the observance of the law. To prevent

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arbitrariness, he championed creation of a constitutionally limited government and three-fold
division of government into:
(a) Legislative power for creation of rules;
(b) Executive power by which laws are enforced; and
(c) Federative Powers which concerns making of war/peace and external relations.
He did not advocate separation between legislative and federative powers. To Montesquieu,
“when the legislative and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty.” Thus, the kernel of separation of powers is the non-fusion
of the functions of government in one person or body of persons i.e. exercise of law-making
powers by the legislature, the implementation or exercise of executive powers by the executive
and the interpretation or adjudicative powers by the courts or independent judiciary.
However, a complete separation of powers, in the sense of division of the three functions
of government amongst the three arms with no overlapping or interrelationship i.e. complete
compartmentalization of powers, even if theoretically feasible, will not be practically viable as it
will make governmental powers inoperable and bring the government to a standstill. According
to Oyewo, a corollary to the doctrine of separation of powers is the principle of “checks and
balances” which seeks to secure the control or limitation of power vested in one arm of
government by another arm of government, as exemplified in the exercise of lawmaking powers
of the legislature under modern constitutions whereby it is circumscribed or checked by the
requirement of assent or veto by the executive, or the exercise of legislative or executive powers
that is subject to the judicial review of the courts. The spectrum of the adaptation of the doctrine
of separation of powers has varied between the form of constitutional democracy. Thus in a
parliamentary system, the powers of both the legislature and executive are fused e.g. The British
Constitutional Democracy model. In a Presidential system, there is a clear separation of powers
in the „functions and functionaries‟ between the various arms of government e.g. The United
States of America Constitutional Democracy model.
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Various writers, jurists and scholars have commented on the doctrine of separation of powers.
According to Blackstone, “in all tyrannical governments, the supreme magistracy, or the right
both of making and enforcing laws is vested in one and the same man or one and the same body
of men; and whenever these two powers are united together, there can be no public liberty.”
Prof. Ben Nwabueze SAN said, “Concentration of government powers in the hands of one

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individual is the very definition of dictatorship, and absolute power is by its very nature
arbitrary, capricious and despotic.” James Madison, a republican and 4th President of the United
States of America said, “… there can be no public liberty where the legislative and executive
powers are united in the same person or body of magistrates or if the power of judging be not
separated from the legislative and executive powers.”
The adaptation of this concept has been a prominent feature of Nigerian Constitutions since
independence. The 1960 and 1963 Constitutions adopted the British concept of separation of
powers whereby power was shared between the judiciary on one side, and the parliament and the
executive on the other. However, the 1979, 1989 and 1999 Constitutions adapted the American
style, where there is a clear separation of the powers of the government. Under these
Constitutions, Section 4 vested legislative powers in the National Assembly and state house of
assembly, Section 5 vested executive powers on the President and Governors and Section 6
vested judicial powers in the constitution established by the Constitution. The separation is also
that of functions and functionaries as enumerated in Chapter V (legislature), Chapter VI
(executive), and Chapter VII (judicature) of the Constitution. Thus, in keeping with the spirit of
the concept, Section 147(4) of the Constitution provides that a member of the legislature
appointed as a minister of the federation must vacate his seat in the legislature.
However, the strict compartmentalization or division of power is not practicable in
modern government, as the constitutional arrangement allows for the practice of corollary
principle of checks and balances by involving the different arms of government in the discharge
of the functions of the other arms of government. Thus, Abiola Ojo observed that;
“… a complete separation of powers is neither practicable nor desirable for effective
government. What the doctrine can be taken to mean is the prevention of tyranny by the
conferment of too much power on anyone, person or body and the check of one power by
another.” Thus, even when a power is primarily vested in one arm of government another arm of
government can be constitutionally involved in the performance of that major function.
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Thus, under Sections 58 and 59 of the Constitution, the President can exercise veto powers over
laws made by the legislature, but such can be overruled by two-thirds majority of the National
Assembly. Thus, in National Assembly v. President of the Federal Republic of Nigeria, the
court held that a Presidential veto can only be overturned by the votes of two-thirds majority of
the whole house and not a quorum and there must be a full reconsideration of the vetoed bill

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before being passed into law. Also, in Olisa Agbakoba SAN v. The National Assembly and The
A.G. of the Federation, it was held that without the President‟s assent the National Assembly
cannot validly exercise its powers to amend or alter the Constitution under Section 9 of the
Constitution. Section 32 of the Constitution provides that the President can make regulations on
citizenship but it must be laid before the legislature. The Constitution by virtue of Sections 175
and 211 of the Constitutions vests the power of prerogative of mercy or pardon on the President
and State Governors. These powers clearly amount to a check on the powers of the judiciary to
impose sentence after a due process of adjudication. This is also the case in the appointment of
judges even though with the approval of the legislature. The provisions of Section 147(2) and
192(2) of the Constitution which empowers the legislature to confirm the President‟s or
Governor‟s appointments of the members of the executive council is a clear imposition of
“checks and balances” as a limitation on the application of the principle of separation of powers.
Thus, in Inakoju v. Adeleke, the Supreme Court adopted a pragmatic approach in its
interpretation of constitutional provision adopting the principle when it noted that the principle
of separation of powers under the constitution is meant to guarantee good governance and
development and to prevent abuse of power. Section 59 grants the National Assembly the power
of budget approval through the passing of appropriation bills. Sections 80-83 grants the National
Assembly the power of control over public funds. Section 88 confers quasi-judicial powers of
conducting investigations into exercise of executive powers by the Minister or the Legislature.
Section 84 of the Constitution confers the power to determine the remuneration of members of
the executive and judiciary. The investigative power of the legislature is aimed at exposing
arbitrariness, abuse of power, corruption and bad governance on the part of the executive.
Section 143 confers the power of impeachment on the legislature as a result of „gross
misconduct‟. Constitutional procedure must however be followed. In Morebishe v. Lagos State
House of Assembly, the court stated that the purpose of separation of powers under the
constitution is to prevent exercise of arbitrary powers by any of the three arms of government.
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However, Oyewo opined that, “in practice the principle of separation of powers brings about
conflicts, deadlocks and threats of divided and fail government when two arms of government
clash intensely over issues that involve the exercise of their powers.” In trying to gain an upper
hand, the legislature tend to resort to the threat of or use of the power of removal or
impeachment of the chief executive until recently when the supreme court in Inakoju v. Adeleke,

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where it gave a strict interpretation to the impeachment provisions to overrule the earlier liberal
interpretation of the court of appeal in Balarabe Musa v. Hamza. This was the most
constitutionally compelling power of the legislature over the executive.
Also, Section 6(6)(b) provides for the separation of judicial function and for the courts to
be able to interprete the constitution and laws and adjudication between the arms of government
on the one hand and between the governmental organs and citizens or group of persons on the
other hand. In Governor of Kaduna State v. Kaduna State House of Assembly, the governor of
Kaduna State sought a declaration that the amendments of the Local Government Edict were
void because they encroached upon his executive powers because they violated Section 4 and 5
of the 1979 Constitution the court declared some of the amendments void and some
unconstitutional and held inter alia that the doctrine of separation of powers is enshrined in the
1979 Constitution. In A.G. Bendel State v. A.G. Fed and Ors, the court held inter alia that by
virtue of Section 4(8) of the 1979 Constitution, the courts of law in Nigeria have the duty to see
that there is no infraction of the exercise of legislative power, whether substantive or procedural,
as laid down in the constitution. If there is such infraction, the courts have the power to declare
any legislation passed pursuant to it unconstitutional and invalid. In Honourable Godwin
Jideonwo and Ors. v. Gov. of Bendel State and Ors. the High Court held among other things
that the constitution clearly sets out the powers of the three arms of government, and if the
legislature passes any law which is beyond its competence, and which it has no jurisdiction to
pass, whether or not it was passed by all the members of the house, any member of the house of
the public who is affected can challenge it in court, and nothing prevents the court from setting it
aside and declaring it ultra vires the legislature. Also, as was held in Adesanya v. President of
Nigeria and Tony Momoh v. Senate of the National Assembly, nothing prevents a court of
competent jurisdiction from hearing and determining matters that had been discussed in the
house.
In conclusion, the doctrine of separation of powers seeks to prevent anarchy and
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arbitrariness by decentralizing powers, however, since a complete decentralization of power is

not possible, the doctrine of checks and balances has been developed as its corollary in keeping
with the spirit of preventing arbitrariness.

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 UNIVERSITY OF LAGOS

FACULTY OF LAW

LL.B DEGREE EXAMINATION

FIRST SEMESTER, 2013/2014 SESSION

PUL 201: CONSTITUTIIONAL LAW

1(a) “there is no universal agreement as to what is federalism. A federal government means what
the constitution says it means….. It conveys different meaning in different constitutions” Niki
Tobi, FRN v Anache

Discus the above statement particularly in view of the clamour for true federalism in Nigeria,
your discourse must take into consideration the salient differences between the 1960, 1963, and
the 1999 constitutions.

1b) what do you understand by the term „covering the field‟.

2a) Dr Tom, the Executive Governor of fairyland state within the federal republic of Nigeria
and his executive council has unanimously passed a resolution creating four new local
governments within the state, with immediate effect. Otunba Jerry, the chairman of Disney local
government council, is not happy with the decision because it has negative consequences on
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monthly allocation to the local government council. Otunba jerry has written a letter to the
president of Nigeria that the monthly allocation of the Disney local government council be paid
directly to the local government council account. In his response the president has directed that
all monthly allocations due to the fairyland state be stopped forthwith. The president further
contests that due process has not been followed in the creation of the local government councils.

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Advise all the parties.

2 (b) State the principle of law in Rotimi Amaechi v. INEC & ORS (2005) 5 NWLR PT1080 at
227 and the likely effect of section 33 and 141 of the electoral act on the Supreme Court
decision.

3 (a) Alh Kudu is interested in running for the gubernatorial office in the 2015 election, however,
he is not very familiar with the constitutional provisions on the nature and scope of the powers of
the executive in Nigeria. His model of executive power is that of the Obasanjo administration,
which he believes will help him to achieve all that he has promised in his manifesto. Advise Alh
Kudu.

3(b) The legislature under the 1999 constitution are given functions without powers. Discuss

4(a) “An independent judiciary is a sine qua non for constitutionalism in any constitutional
democracy.” examine this statement in the light of the constitutional provisions and practice in
Nigeria.

4(b) Amara, Kole and, Putah are newly sworn in judges in the federal high court, who were
engaged in a discussion on constitutional interpretation. Justice Amara opined that there is no
difference between it and the interpretation of statutes. Justice Kole on the other hand was of the
view that the Supreme Court cases have established clear principles on the subject. Justice Putah
however felt that both of them were right and the argument unnecessary. In the light of the above
discussion, highlight the basic constitutional principles of constitutional interpretation in Nigeria,
with the aid of decided cases.

5. The president of the senate and the speaker of the House of Representatives are seeking your
advice on the constitutionality of the following actions of the national assembly.

a) The national assembly of the FRN proposes a bill on the appropriation over which both
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chambers of the NA were deadlocked and forwarded from their joint committee to the president
for assent.

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b) The national assembly in exercise of its oversight functions over the other arms of government
has invited the minister of petroleum resources on several occasions top give budgetary
allocations to the ministry of petroleum resources.

c) The national assembly has passed into force a bill for the amendment of the constitution
without the assent of the president.

d) The Lagos state house of assembly has passed a bill for the creation of new local government
areas in the state and the state government has now filed an action in court to compel the national
assembly to amend the 1999 constitution of the federal republic of Nigeria

6. What do you understand by autochthonous constitution?

ANSWERS

1. (a) Federalism.

In different political systems, various means are adopted for the distribution of powers within the
polity. Such division is usually based on certain overlying factors within a particular milieu and
may precipitate the adoption of a federal or a unitary system. Federal systems are adopted mostly
in countries with large land mass, large population and also for administrative expediency as was
the case in Nigeria.

The term federalism is incapable of strict and concise legal definition. This flows from the
inability of anyone author to properly encapsulate in a single definition all the characteristics and
component of a federal system. More so the exact theoretical or practical meaning of federalism
is yet to be settled, this makes any attempt at an all-encompassing definition impossible as any
such definition will not be immune to criticism. Nevertheless, various writers, authors and jurists
have attempted definitions of the concept mostly coloured by their idiosyncratic variables,
personal preferences and political background.
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According to KC WHEARE, who proposed the most accepted definition on the concept, „‟ by
federal principle i mean the method of dividing power so that the general and regional
governments are each within a sphere co-ordinate and independent‟‟ He emphasized the
pertinence of certain formal institutions like a supreme constitution, a bicameral legislature, an

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independent electoral system, an independent judiciary among others as condition precedents to
the existence of a federal structure. As with other definitions on the concept, his definition was
criticised as being too legalistic and encouraging dualism. Eminent Professor of constitutional
law defined the concept in similar fashion when he regarded it as „‟ an arrangement where the
powers of government within a nation or country are divided between a national, country wide
and a number of regionalised governments in such a way that each exists as an entity separately
and independently of the other, and operate directly on the persons and property within its
territorial area, possessing a will of its own and apparatus for conducting its affairs, sometimes
on matters exclusive to it. He highlights further certain prerequisites for the existence of what the
learned jurist called true federalism, namely that there be separateness and independence of each
government; mutual non-interference; equality between the various regional governments; an
appreciable number of regional governments between whom the powers will be shared;
techniques for the division of powers and a supreme constitution. In as much as some of the
features highlighted by Professor Nwabueze constitute characteristics of federal systems, various
federal systems exists the world over which a varying conglomeration of some of these features
and to insist on the existence of all of these features will be tantamount to denying the federal
state to many states. This therefore forms a major loophole to this definition.

In the words of Professor Abiola Ojo in his book „constitutional law and military rule in Nigeria‟
„‟ federalism is capable of different meanings and conceptions, depending on the perspective and
the background of the perceiver. There are writers whose emphasis has been on the form of the
constitution and certain institutions and as far as they are concerned the absence of these make
any discussion of federalism futile. Another school holds that federalism is the product of social
forces and that the ultimate political structure is dependent on those forces; still is another school
that the party system is a crucial federal variable while another is that intergovernmental
institutions and arrangements are crucial for structuring political and social interaction. However,
with the nebulous form and uncertain form and content of federalism, we are in agreement that it
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is better to avoid argument about definition until theory and practice could be harmonized
satisfactorily. This is most important in developing countries which are presently laboratories of
political and constitutional activities. This definition is regardless of its comprehensive form is
inadequate in solving the problem of definition, more so as it relinquishes such task until there is

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a harmonisation of theory and practice, which is in itself not possible until there is agreement as
to theoretical composition.

Justice Niki Tobi in Federal Government of Nigeria v Anache while acknowledging the
difficulty in definition stated that “there is no universal agreement as to what is federalism. A
federal government means what the constitution says it means ….. It conveys different meaning
in different constitutions. Although it may be knit in theories of political science, it conveys
different meanings in different constitutions as the constitutional arrangement shows, particularly
in the legislative lists”. This definition recognizes the disparity in constitutional representations
of what is a federal system under different political systems. William Livingstone gave a
conflicting definition thus, “the essential nature of federalism is to be sought not in the shading
of legal and constitutional terminology, but in the forces- economic, social, political, and
cultural- that have made the outward forces of federalism necessary. The essence of federalism
lies not in the constitutional or institutional structure, but in the society itself. Federal
government is a device by which the federal qualities of the society are articulated and
protected‟‟

While the definition of learned Justice Niki Tobi, holds merit, flowing from the fact that the
constitution in most federal arrangement espouses the exact nature of the federal system and in
fact provides the modus operandi of such a system, it however does not provide conclusive
adumbration on the government as the constitution is not the whole law but the basic law. The
question as to what is true federalism, cannot be answered by reference to a laid down system,
but rather to the particular system in operation and to the system practised within a particular
political milieu. The system of federalism practised in most countries is a representation of the
preferences of the country and what seems feasible and practicable in the country. The debate on
the question of true federalism is one which is also on going within the Nigerian legal system,
particularly with the clamour for an autochthonous constitution. On various constitutional
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arrangements in Nigeria different shades of federalism have been practised. The 1960 and 1963
constitutions devolve more power on the regional governments. The regions controlled their
resources and could consequently finance capital projects. Each region also had its own
constitutional document, with separate coat of arms and motto. The revenue allocation at the

285
time was strictly based on derivation. The regional governments also had residual powers. Such
that any function or power not allocated to the central government is left to the regions.

In contradistinction to the 1963 and 1963 constitutions, the 1999 constitution, adopted a power
sharing formula that was represented in the exclusive list, the concurrent legislative list and by
inference the residual lists. The central government is prima facie more powerful flowing from
the large number of items allocated it in the exclusive legislative list. Under this dispensation the
governmental system was a three tier governmental system wherein all governmental powers
were shared, including the legislative, the executive and the judicial powers. There was under
this constitutional a single constitution which had a supreme status and applied throughout the
country

In conclusion, the very nature of a constitutional government is in most cases represented by the
constitution of the land. Furthermore the adoption of any one system of federalism does not a
particular federal system superior to the other. Thus it can be said that there can be no general
acceptance of a definition for true federalism, flowing from the varying reasons for the adoption
of federalism by various countries.

(b) Principle of Covering the field

A necessary incident of the practice of federalism is that power be divided among component
units. Such devolution may result in a stronger central government and weaker component units
and vice versa. Such powers being distributed include legislative, executive and judicial powers.
In such a setting, even where the limits of the exercise of powers are set out by a supreme
constitution, conflicts may still arise in the process thereof. It is such conflicts that the doctrine of
covering the field seeks to provide for, pointedly in the area of law making.

The doctrine of covering the field is a constitutional law doctrine which provides that in the
exercise of legislative power between the central legislature which is the national assembly in
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Nigeria, and the regional legislatures (the houses of assembly) where there is a conflict between
the laws made by the central government and the regional government, the law made by the
central government shall prevail. The doctrine I specifically provided for in Section 4(5) of the
1999 constitution as amended. It provides inter alia that “if any law enacted by the house of
assembly of a state is inconsistent with any law validly made by the national assembly, the law

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made by the national assembly shall prevail, and that other law shall to the extent of its
inconsistency be void. The law applies with regard to matters on the concurrent legislative list
which is the only list of subject matter from which a conflict can arrive flowing from the fact that
both the federal government and the state government on the matters therein.

The application of the doctrine can only take place where the federal law has been validly made,
thus pursuant to powers constitutionally granted and exercised. This position was espoused in the
case of Ogun state v. Aberuagba, wherein the court held that both the federal and the state
government had power to legislate on sales tax; however the federal government authority is
limited to interstate trade and commerce while the states authority is limited to intrastate trade
and commerce. Consequently the court refused to apply the doctrine in Nigerian Soft Drinks
Company v Attorney General of Lagos. The principle was adumbrated upon by Atanda Fatayi
Williams in AG Ogun v AG Federation thus “it is of course settled law based on the doctrine of
covering the field that if parliament enacts a law in respect of a matter in which both parliament
and regional legislature are empowered to make laws, and regional legislature enacts an identical
law on the same subject matter, the law made by the parliament shall prevail. That made by the
regional legislature shall become irrelevant and therefore impliedly repealed”

Once it appears from the provision of the federal law that intention is to cover the whole field on
the subject matter, then the state law on the matter is inconsistent and invalid. However where
the state law covers the same field with the federal law, providing similar provision as the federal
law, it cannot from the purport of the section be regarded as inconsistent. It will nevertheless be
inoperative, because the state legislature would have exceeded its constitutional limitation and
authority, interfering in areas reserved for the national assembly. Professor K.M Mowoe noted
that “the section cannot in a proper federation be taken to mean that where the national assembly
law covers areas reserved for the state, the state law will be inconsistent. This view was
recognized by the courts in the 2014 case of AG Lagos v AG Federation on the issue of tourism.
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On scenarios where the laws made by the national assembly and state house of assembly are
identical, Justice Kayode Eso noted succinctly that “I respectfully take the view that the state
legislation is in abeyance, and becomes inoperative for the period the federal legislation is in
force. I will not say it is void. If for any reason the federal legislation is repealed, it is my humble

287
view that the state legislation which is in abeyance, is revived and becomes operative until there
is another federal legislation that covers the field”

The doctrine has also been applied as between the constitution and an act of the national
assembly. As seen in the case of AG Abia v AG Federation, on the electoral act. The doctrine
which also applies in the United States is known as the doctrine of pre-emption.

In conclusion, the doctrine of covering the field is a constitutional doctrine aimed at ensuring the
smooth operation of the machinery of government by preventing gridlocks that might arise from
conflicts as to constitutional authority. However the doctrine should not become a tool in the
hand of the federal government to subvert the law making powers of the state government or to
make a mockery of the law making powers of the state legislature. More importantly the courts
should always be on standby to determine the exact powers of the various levels of government
within the polity.

2. (a) The issues arising for legal determination are:

i) Whether or not due process had been followed in the creation of the local
governments councils

ii) Whether not the local government chairman, Otunba Jerry was within his right to
demand that the local government allocation be paid directly into the local
government account.

iii) Whether or not the president could validly stop the payment of monthly allocation to
the state of fairyland.

In Nigeria‟s constitutional democracy, the local government is the third tier of government and
for the purpose of expediency and the proper working of government is recognised in section 7
of the constitution which provides inter alia that “the system of local government by
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democratically elected local government councils is under this constitution guaranteed”. The
procedure for its creation is provided in section 8(3). It provides that “ a bill for a law of the
house of assembly for the purpose of creating a new local government area shall only be passed
if- a request supported by at least two thirds majority of the members representing the area
demanding the creation of the new local government area in each of the following, namely – the

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house of assembly in respect of the area, and the local government councils in respect of the
area, is received by the house of assembly; a proposal for the creation of the local government
area is thereafter approved in a referendum by at least two thirds majority of the people of the
local government area where the demand for the proposed local government area originated; the
result of the referendum is then approved by a simple majority of the members in each local
government council in a majority of all the local government councils in the state; and the result
of the referendum is approved by a resolution passed by two thirds majority of the members of
the house of assembly” furthermore the constitution provides in subsection 5 that an act of the
national assembly passed in accordance with this section shall make consequential provisions
with respect to the names and headquarters of states or local government areas as provided in
section 3 of this constitution and in parts I and II of the first schedule to this constitution”

Flowing from the supreme nature of the constitution as enshrined in section 3(1) its provisions
must be strictly adhered to and its contravention will be unconstitutional, null and void. The
constitution also provides for the creation of a federation account in section 162 from whence all
other arms of government will be serviced with their allocation thereof. With specific regard to
local governments, subsection 5 provides that “the amount standing to the credit of the local
government councils from the federation account shall be allocated to the states for the benefit of
their local government councils on such terms and in such manner as may be prescribed by an
act of the national assembly” subsection 6 provides further that each state shall maintain an
account to be called state joint local government account into which shall be paid all allocation to
the local government councils of the state from the federation account and from the government
of the state.” It is also the obligation of the state pursuant to subsection 7 of the same section to
pay to the local government in its area of jurisdiction such proportion of its total revenue on
terms that are to be prescribed by an act of the national assembly. The responsibility to pay
allocation for a state into the state account is a constitutionally enshrined function which cannot
be eroded on the basis of an executive action. This point of law was properly adumbrated upon in
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the landmark case of AG Lagos v. AG Federation. in which case, the federal government under
the auspices of president Obasanjo stopped the payment of monthly allocation to the Lagos state
and a couple of other states on the ground that they had contravened the provisions of the
constitution in the manner in which they had gone about the creation of new local government
areas. Furthermore, as noted by Professor Osibanjo, for the claimants, the power granted the

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president in section 162, made no room for discretion on his part in the exercise of his powers
there under. It was held that the president of the federal republic of Nigeria has no power to
suspend, withhold or direct the suspension or withholding (whether by way of administrative
action or executive fiat) for any period, the statutory allocations due and payable to the local
government councils in accordance with the provisions of the constitution. In application of the
rules to the facts of the case, the constitution is supreme and its provisions must be strictly
adhered to, failure of which the resulting action will be unconstitutional, null and void. The
constitution has laid down the procedure for the creation of new local governments within the
state. Thus, where as in the given case, its provisions are not adhered to the resulting local
government is constitutional and has no legal backing. The unilateral action of the governor and
his executive council in passing a resolution creating new local government areas is by
implication null and void and an improper exercise of executive powers.

With regard to the second issue, the local government chairman had no right whatsoever to
demand the direct payment of the local government allocation. This would have been a
contravention of section 162 supra, which requires the payment of such monies to a joint state
and local government council account. The stopping of monthly allocation by the president on
the ground that due process has not been followed is unjustifiable. Relying on the authority of
AG Lagos V. AG Federation, the position was also espoused that the power of paying of state
revenue was not a discretionary power which the president could decide not to do as was the case
in the facts above

In conclusion, the Dr Tom is hereby advised to adopt the procedure provided in the constitution
in other for the local governments to attain constitutional validity. The local government
chairman is also advised to adopt alternative means for resolving his grievances as the request
for direct payment of allocation is not attainable. The president is also advised to rescind his
action in stopping the payment of allocation to meet the laid down constitutional requirements.
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2. (b) Rotimi amaechi v INEC is a celebrated case that arose from an action brought by the
gubernatorial candidate of the people‟s Democratic Party whose name was substituted by the
party for that of Celestine Omehia. Who ended up running for the election and emerging winner
and was thereafter sworn in. He instituted an action at the federal high court against the
respondents, INEC and applied for an interlocutory injunction to restrain them from changing or

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substituting his name as the PDP candidate for the April 2007 election unless and until a court
order is made disqualifying him based on cogent and verifiable reasons as required under section
34(2) of the old electoral act. The case extended to the Supreme Court having gone to the Court
of Appeal. During this process various delay tactics were adopted by the defence in other that the
election will be held and therefore there will no longer be a cause of action making the courts
determination prima facie an academic exercise. The court in giving judgement for the plaintiff
relied on the decision in Ugwu v Ararume and held that the substitution of the plaintiffs name on
the grounds simply of error were not tenable and the respondents contention of an indictment
was also rejected because there was no indictment known to the law against the appellant. The
respondents also attempted to rely on the provisions of section 308 as providing immunity for
the 2nd respondent, however, this proposition was rejected on the basis that the wrong upon
which the appellant premised his claim has been in existence before the election. The learned
justice of the Supreme Court declared succinctly thus “it is my view that the candidate of the
PDP at the election was the appellant. His name was unlawfully removed. In the eyes of the law,
he remained the candidate and this court must treat him as such. My view is that it was the
appellant and not the 2nd respondent who must be deemed to have won the elections. The
argument that the appellant must be held to his claims overlooks the fact that this court has the
wide jurisdiction to give consequential orders and to grant reliefs which the circumstances and
the justice of a case dictate. Wherever justice demands it, this court shall rise to do justice
without regard to technicality”.

This judgement from the apex court was met with mixed reactions and resulted in a lot of
controversy as to the exact situation of the law. This situation and the events that led to it
necessitated the amendment of the electoral act which sort to ameliorate some of the issues
created by the judgement. The legislature provided a solution to the problem that brought about
the Amaechi v INEC case ab initio. It provided in Section 33 that “ A political party shall not be
allowed to change or substitute its candidate whose name has been submitted pursuant to section
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32 of this act, except in the case of death or withdrawal of the candidate” with this statutory
position, the party having forwarded a name the independent national electoral commission,
cannot there after substitute such a name except on the grounds specifically provided in the act as
being either in the event of the candidates death or where he, of his own volition withdraws his
candidacy.

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The legislature also recognized another problem that arose from Amaechi‟s case supra and
provided in Section 141 which provides inter alia that “ an election tribunal or court shall not
under any circumstance declare any person winner at an election in which such person has not
fully participated in all the stages of the said election”. The statute was a response to critics of
the Amaechi judgement on the basis that Amaechi made no efforts whatsoever towards the
general election. Therefore, applying the new law, an applicant in Amaechi‟s position would
have no cause of action. On the flip side, it is debatable whether in fact Celestine Omehia would
be entitled to such declaration since he had not participated in the party primary which is in itself
a stage of the election.

In conclusion, the new evidence act was aimed at solving the many problems to the conduct of a
free and fair election and notably, took into consideration the specific issues that had arisen at
different points in time and made specific effort to find palliatives to them.

3. (a) The nature and scope of the powers of the executive.

Nigeria has adopted the presidential system of government which is modelled after the American
system. The executive in contradistinction to the practice under a parliamentary system, derive
their powers from the people and is voted into power by the people whom they represent. This
system was adopted under the 1979 constitution and was retained in the 1999 constitution as
amended.

Executive powers ipso facto lies in the implementation of laws and the achievement of the
primary objectives of governance. These presidential powers first and foremost extend to the
interpretation of the constitution. The president also has the power of peace order and good
governance as provided in section 4 and alluded to in section 12 of the constitution. Presidential
authority has constitutional and legal scope and certain inherent powers. Inherent powers are
those which, where no express provision for. There are however solid grounds where they flow
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from express constitutional provisions. However the position was stated in Myers case that when
there is a clear provision as to what the president can and cannot do, he cannot claim to have
inherent powers. A similar position was espoused in the case of Youngstown Sheet and Tube
Co. v sawyer. The exercise of such powers is such that there is no legal or constitutional
provision to that effect. Although, he is in a much better ground when such exercise of power is

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derivable from the constitution. An apt example of such powers was provided during the
Obasanjo regime with his exercise of emergency powers. The president is constitutionally the
head of state and the head of the executive. He is also the commander in chief of the armed
forces; The head of state and the embodiment of the sovereignty of Nigeria. On the state level,
the governor of the state is the executive head. The executive powers and functions include, war
powers, power of appointment, power over revenue, treaty making powers, prerogative of mercy,
declaration of state of emergency.

The executive has the constitutionally enshrined power of making appointments into various
bodies and parastatals within the polity. The president appoints the attorney general of the
federation and the minister of justice as well as other ministers of the federation as provided in
section 147 of the constitution. Such power of appointment also extends to the establishment of
certain executive bodies as listed under section 154 of the constitution. The governor of the state
also has similar powers in the area of appointment, in appointing his commissioners and all other
members of the public service in other to ensure the proper working of the government. The
executive arm of government, headed by the president also has power over public revenue. This
power is derived from section 162 of the constitution. It is also the power of public finance and
encapsulates how to generate revenue and expenditure. This power is however subject to
legislative checks hence the requirement of an appropriation act for the purpose of withdrawal
from the federation account. as clear as the law in the situation maybe it is deplorable that the
government in utter disregard for the rule of law would adopt ingenious means in defeating the
need for the act. Notable among which is the purport of the NNPC who claim to rely on the
NNPC act which gives them power to spend without appropriation.

The powers of the president also extend to treaty making as provided in section 12 of the
constitution. There are treaties, covenants, bilateral and multilateral agreements as well as
sovereign states collaborative instruments. It is the president being an embodiment of the
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country‟s sovereignty that is authorised to enter into such agreements. The ministry of foreign
affairs however guides the president in the exercise of these functions. The constitution however
provides that, such treaties require domestication before they can be said to apply in Nigerian
courts. This point of law was emphasised in the case of Abacha v Fawehinmi. The president and
governor also have the power of prerogative of mercy. This is provided in section 175 of the

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constitution. Such exercise of power applies only to criminal matters. In civil matters the
Supreme Court is the final appellate court in an issue

Conclusively, the executive arm is that arm of government that sees to the day to day running of
the country or state as the case may be. They see to the smooth operation of the machinery of
government. It is therefore quintessential that there be transparency and accountability in the
exercise of functions that come with the office.

3. (b) The legislature is the arm of government constitutionally empowered to make laws. It is
also the body of constituent representative of the people, conferred with the authority to express
the wishes of the people through laws and the supervision of the other arms of government. The
legislative powers of a state maybe vested in a single unicameral body or a two chamber
bicameral legislature. In Nigeria, a bicameral system is adopted at the federal level, and a
unicameral, at the states. The bicameral legislature consists of the House of Representatives and
the senate. The 1999 constitution in section 4 delineates the legislature at the federal and state
and gives them legislative powers. Such powers are more clearly adumbrated upon in the various
legislative lists as contained in the second schedule to the constitution.

The lawmakers have law making powers. They however make a distinction between the passing
of ordinary laws and appropriation bills. Such law making powers are exercised through bills. A
bill is a legislative proposal that becomes law upon passing having gone through the law making
process. These law making powers are subject to checks from the executive arm of government.
Particularly, the president who has the power to veto any law passed by the legislature; which
can only be overridden by following stringent procedures. Such law making procedures are
provided in section 58 of the constitution. Appropriation and money bills are separately
provided for in section 59 and 60. Ancillary to the power of law making in regards to
appropriation bills, the legislature also has the power of control over public funds. The purport of
section 59 is such that there can be no expenditure without appropriation. This position was
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alluded to in the celebrated case of AG Abia v. AG Federation. There has however been debate
as to whether the legislature can increase or amend the appropriation bill, if the legislature
actually controls public fund

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The legislature also has investigative powers as granted in section 88 of the constitution. In
most cases investigations are for law making purposes. The power of investigation is
coterminous with the power of law making. It also involves matters that have to do with public
money. This forms the rational for the investigation of private persons when they have any such
relationship for example government contractors. This power is however not a large one without
limit. It must be exercised with respect to law making powers. However, the power of
investigation for corruption throws the legislative power of investigation open

The legislature also has the power of representation and appointment. The legislature
interrogates proposed appointees. They provide a platform for appointees to be presented before
the people. Without such confirmation by the senate, the appointment is null and void. Running
parallel to the power of appointment is that of removal. The constitution requires the checking of
executive powers in this manner to avoid an abuse of powers.

The legislature also has the power of impeachment. This serves as a major instrument of checks
on the powers of the executive in other to prevent an abuse of powers. This power is provided in
section 143 of the constitution for the federal legislature and in section 188 for the states. It
should however be noted that the word impeachment is not used throughout the section, because
the term is borrowed from American law. Impeachment can negate the expressed voice of the
people in electing representatives. Hence the adoption of strict; and stringent procedure. It was
noted in Clinton v Monica Lewinski that it is the only way of removal save for the effluxion of
time. Such impeachment is based on a gross misconduct which is defined in subsection 11 of the
sections above. In practice, under Nigeria‟s constitutional democracy, the power of impeachment
has been recurrently abused and the procedure laid down in the constitution had been
contravened. In Balarabe Musa v. INEC for example, they relied on the ouster clause as
provided in subsection 10 as denying the courts of jurisdiction to determine whether such
impeachment had been carried out according to the due process of the law. This situation of the
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led to impeachments going amok notably in plateau state and Oyo state. However the courts
intervened and set the record straight that, subsections 1-9 were condition precedents to
subsection 10 such that where the provisions of the preceding subsections had been violated,
they cannot attempt to rely on subsection 10 as striping the courts of jurisdiction. This decision
brought sanity to impeachment proceedings.

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The legislature also performs the function of constitutional amendment as well as constituency
representation. The function of constituency representation is read into the qualification of
elected representative for their membership in the legislature. To be a member, you must be a
representative of your constituency; such representation can be done by establishing a presence
by establishing constituency offices. Constitutional amendment is a fundamental exercise of
power which gives the legislature to change the distribution of powers and various relationships
within the constitution. The fundamental nature of such powers forms the rationale for the
stringent procedure laid down by the constitution for its exercise. This also forms the basis for
the classification of the Nigerian constitution as rigid. The procedure for amendment is
adumbrated upon in section 8 and 9 of the constitution.

Conclusively, the role of the legislature within the Nigerian legal system is quintessential and is
indispensible for the proper working of the machinery of state. The powers granted them
therefore are meant to make the performance of their functions feasible and practicable.

4. (a) The judiciary is one of the institutions of government. It is constitutionally by virtue of

section 6 vested with adjudicative powers. It is the only arm of government that does not consist
of elected representatives but rather of appointed ones. It is the final arbiter of what the laws
made by the legislature is generally in the words of Prof Ben Nwabueze, the guardian of the
constitution, the protector of our cherished governance under the rule of law, the guardian of our
fundamental rights, the enforcer of all laws without which the stability of the society can be
threatened, the maintainer of public order and security, the guarantee against arbitrariness and
generally the only insurance for a just and happy society. This underlines the immense
importance attached to the judiciary. It is therefore important that they be able to execute their
functions properly and without fear or bias.
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The concept of independence of the judiciary derives from the principles of the rule of law,
separation of powers and consitututionalism, whereby the judiciary is seen as the machinery to
check the other arms of government. It therefore means that it must be free from undue influence
or interference by the other arms of government. The judiciary must also be impartial and
independent in the adjudication of disputes.

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Justice Kayode Eso noted that “The independence of the judiciary must be a sine qua non for all
the judges in all the hierarchy of courts, for the performance of the role which the constitution
has assigned to them. Winston Churchill also highlighted and recognised the importance of such
independence when he said “the independence of the judiciary is the foundation of many things
in our island life….. It is perhaps one of the deepest gulfs between us and all forms of totalitarian
rule. The only subordination which a judges knows in his judicial capacity is that which he owes
to the existing body of legal doctrine enunciated in years past by his brethren…… and upon the
law passed by parliament which have received royal assent”. The question then becomes what
the constitutional mechanisms provided by the constitution are to ensure independence under the
1999 constitution. This will be discussed under three headings. Namely: mode of appointment,
method of removal and remuneration; as well as conditions of service.

The mode of appointment is an important factor in determining the overall level of independence
enjoyed by the judiciary. There are two basic/separate methods both at the federal and the state
level. Appointment by the chief executive, on the recommendation of the national judicial
council also requiring senatorial approval; and appointment by the president or governor, on the
recommendation of the national judicial council, without the need for legislative approval. The
first method applies to the office of the CJN, justices of the Supreme Court, the president of the
court of appeal, the chief judge of the federal high court of the states, the grand kadi of the sharia
court of appeal of the Fct and the president of the customary courts of the Fct. The second mode
on the other hand applies to the justices of the court of appeal, judges of the federal high court,
and judges of the customary court for the Fct. For the states the first method is used for the same
courts on the state level. It must be noted that before a person can qualify for appointment, he
must satisfy the minimum constitutional requirement. It must also be observed that neither the
executive nor the legislature is presumed by the constitution to exert undue influence in the
appointment of judicial officers. However this issue has been raised in some instances where
there is an obvious show of bias in the process of such appointment. For example, where the
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chief executive appointed his wife chief judge in the state, over and above others that could have
been considered more deserving of the position. A case in point is the appointment of Mary Odili
as chief judge. Similar allegations were also made in the appointment of Mrs Atinuke Ige. In any
such appointments, the calibre of judges must be carefully considered. The practice in Nigeria is
for appointments to come mostly from the magistracy and the bar, the practice of appointing

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from the educations, has gone into oblivion and should be resurrected. In considering the
openness of such proceedings, the principle of federal character comes into play. Thus the
quality of the bench is dependent on where the judges are gotten from. This federal character can
result in uneven growth and the appointment of unqualified members of the bench.

The mode of removal is another important determinant of the level of independence of the
judiciary. The decision in Elelu-Habeeb v. AG Federation discusses in detail the role of the NJC
in the process of appointment and removal. The provision of section 292 properly establishes the
grounds upon which members of the judiciary can be removed. He cannot be removed before his
retirement age except under certain circumstances. They include where he is unable to perform
the functions of his office arising from infirmity of the mind or the body and also for misconduct
or for the contravention of the code of conduct. Where this is the case such a judicial officer can
be removed by the NJC. Unfortunately however, the NJC is an executive body and is appointed
by members of the executive thus there is a high tendency that the will be subservient to the
whims and caprices of the executive that put them in office.

Remuneration is also an indispensible factor in the independence of the judiciary. As provided in

section 84, the remuneration of members of the judiciary is determined by the revenue
mobilisation allocation and fiscal commission and is to be charged directly to the consolidated
revenue fund. Given the status quo, it cannot be altered to their detriment nor can the executive
exercise undue influence over it. This is aimed at forestalling the practices of interference as was
common with the military government. The judiciary is also given the power to regulate their
own court and to control their budget. This is specifically done by the chief judge of the state.

Conclusively, it is an obvious fact that the judiciary needs without doubt to be independent for
the proper exercise of their constitutionally mandated functions. As much as they need to be free
from interference and other arms of government are to abstain from hindering their processes,
the member of the judiciary themselves need to maintain a high level of integrity. The culture of
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judicial independence should also be instilled and developed both at the bar and the bench.

5. (a) The issue arising for legal determination is whether or not the joint committee of the
national assembly can validly pass a law subject to presidential assent.

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The legislature is the arm of government charged in section 4 with the making of laws for the
peace order and good governance of Nigeria. The range of matters which the national assembly
can legislate upon is also highlighted in section 4. This law making powers are non-delegable
probably because of their level of importance within the polity. The procedure for the exercise of
such law making powers are provided for in section 58 of the constitution of the federal republic
of Nigeria as amended. With particular regard to appropriation bills and other money bills.
Section 59 provides in subsection 2 that “ where a bill to which this section relates is passed by
one of the houses of the house of the national assembly but is not passed by the other house
within a period of two months from the commencement of the financial year, the president of the
senate shall within fourteen days thereafter arrange for and convene a meeting of the joint
finance committee to examine the bill with the view to resolving the differences between the two
houses” this provides for a situation of conflict in the passing of such bills. The constitution
however leaves a lacuna as to what exactly is to be done where the joint committee is able to
reconcile the differences. This gap was filled by the court in the case of AG Bendel state V. AG
Federation. In which case, the SC declared invalid the appropriation bill which went directly
from the joint committee of the house to the president for assent. The court rationalised it as a
usurpation of legislative power which was unconstitutional and declared that the bill be sent back
the legislative houses for consideration.

In application of the rules to the fact of the, the power of law making is a non-delegable one
which is exclusively granted to the legislature. And such powers cannot be usurped by any other
body irrespective of the fact that it comprises of members of the legislative houses as was the
case with the joint committee of the national assembly. Therefore, the joint committee of the
house must forward to the house the product of their reconciliation, who must then reconsider
and forward to the president for assent.

In conclusion, the houses of the national assembly are hereby advised to realign their actions in
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tandem with the constitution by reconsidering the bill before sending to the president for his
assent.

(b)

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The legislature being the sole law making body in the Nigerian federalism also have the function
of checks and balance over the other arms of government. One of such exercise of checks is in
the area of oversight. This power is granted under section 88 of the constitution of the FRN as
amended.

Section 88 provides inter alia that, “ subject to the provisions of this constitution , each house of
the NA, shall have the power by resolution published in its journal or the official gazette of the
government of the federation to direct or cause to be directed an investigation into-(a) any matter
or thing with respect to which it has power to make laws; and (b) the conduct of affairs of any
person, authority, ministry or government department charged or intended to be charged, with
the responsibility for (i) executing or administering laws enacted by the national assembly, and
(ii) disbursing or administering moneys appropriated or to be appropriated by the national
assembly.

In application of the rules to facts of the case, the national assembly is within its right to invite
the petroleum minister being a member of the executive arm of government to give account of
his budgetary allocation. Provided it is in tandem with the constitutional requirement that it be
for making laws within its legislative competence or for exposing corruption. In the given case,
the invitation could be put under the second rubric and is therefore valid.

Conclusively, the national assembly has contravened no constitutional provision in inviting the
minister, they are however only empowered to fact, and have no power to prosecute or remove
such a person from office.

(c) Issue: whether or not the national assembly can pass a bill into law without presidential
approval.

The constitution laws down the procedure and manner in which legislative powers are to be
exercised. It provides for the amendment procedure for the constitution in section 9 of its
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provisions. The constitution clearly espouses the procedure as being subject to the approval of
2/3 majority of the house proposing such amendment, and supported by a resolution of the
houses of assembly of not less than 2/3 of the state. Irrespective of the fact that the constitution
does not specifically provide for presidential assent, the courts have decided in the case of DSS
V. Olisa Agbakoba that a bill cannot become a law unless approved by the president. Therefore,

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after the proposed amendment has passed through the required process, it must then be approved
by the president otherwise it will be inchoate and invalid.

In application of the rule to the fact of the case, the national assembly cannot validly amend any
provision of our rigid constitution without the approval of the president. Such a bill will by so
doing have acted ultra vires their powers as represented in the constitution and interpreted by the
courts of law.

In conclusion, the national assembly is hereby advised to correct their error in law, by
forwarding the proposed amendment to the president for assent in other for such bill to become
law so validly made.

(d) Issue: whether or not the states can compel the NA to amend the constitution to reflect newly
created local governments within the state.

The system of local governments within the Nigerian federal system is constitutionally
guaranteed and protected in section 7 of the 1999 constitution as amended. The procedure for
such creation which is to be done by the state is provided for in section 8 of the constitution.
Having followed the constitutionally laid down procedure, section 8(6) provides that, “an act of
the national assembly passed in accordance with this section shall make consequential provisions
with respect to the names and headquarters of the states or local government areas as provided in
section 3 of this constitution and in parts I and ii of the first schedule to the constitution”. This
power shall be exercised by each house making adequate returns to each house of the national
assembly. It is important to note that the courts have no power to interfere in the internal
proceedings of the house so as to compel them to pass a particular law.

In applying the rules to the facts of the case, the state house of assembly was within its right to
pass law creating new local government areas; however they could not seek a court order
compelling the national assembly to make consequential amendments to the constitution. The
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constitution provides that the procedure is to make adequate returns to the national assembly for
the purpose of making such returns.

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The state house of assembly is hereby advised to follow the procedure laid down I the
constitution, that is make returns to the national assembly, rather than embarking on a fruitless
journey.

FIRST SEMESTER, 2011/2012 SESSION

PUL 201: CONSTITUTIIONAL LAW

1. What is separation of power? The application of the doctrine to modern systems of governance
does not signify a three-fold classification. Explain this with reference to the 1999 constitution.

2. Dicey‟s concept of the Rule of Law is unworkable. It was based on a misunderstanding of

certain facts at the time it was propounded. The concept connotes other factors in modern times.
Do you agree? Give reasons for your answer.

3. Critically examine the provisions of the 1999 constitution on the powers and duties of the
President.

4. (a) The Legislature has passed a law in PUPA state

(b) The Legislature reduced the annual budget of PUPA State from N3 trillion to N2 trillion

(c) Senator Ishola who chaired a committee invited a Federal Minister to appear before it. He
requested the Minister to present the documents detailing the Ministry‟s budget in the previous
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year.

(d) He also requested for the sum of N1 million to facilitate the sitting of the committee.
Examine all the constitutional issues involved.

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5. (a) Mohammed sule, a 29 year old Nigerian has recently relocated to Mainland Local
Government Council Area of Lagos State from Suleja Niger State. Mohammed Sule is planning t
contest for the position of Chairman, Mainland Local Government Council in the forthcoming
Local Government Council in the forthcoming Local Government elections in Lagos State.
Mohammed Sule is an independent candidate.

Advise Mohammed Sule on relevant provisions of the Electoral Act.

(b) How can a new Local Government Council be created under the 1999 constitution.

6. “There is no universal agreement as to what is federalism. A federal government means what

the constitution says it means. Although the word federalism means may be knit in theories of
political science, it conveys different meanings in different constitutions, as the constitutional
arrangements show, particularly in the legislative lists‟ Justice Niki Tobi, Federal Republic of
Nigeria v. Anache (2004) 14 WRN 1

ANSWERS

1. Separation of Powers

The doctrine of separation of powers is fundamentally a doctrine opposed to the concentration of

state sovereign powers in a single person or body of persons, since that may lead tot they tyranny
and threat to democratic governance, and this doctrine has been expressed in stronger or weaker
form in many constitutions. It is seen as one of the devices used by Anglo-American system of
government to protect the rule of law and prevent the exercise of arbitrary power by the
sovereign. The concept stemmed from the writings of Locke and Montesquieu. The former
argued that it is foolhardy to give lawmakers the power to execute laws made by them because,
in the process, they may exempt themselves from the observance of the law. To prevent
arbitrariness, he championed creation of a constitutionally limited government and three-fold
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division of government into:

(d) Legislative power for creation of rules;

(e) Executive power by which laws are enforced; and

(f) Federative Powers which concerns making of war/peace and external relations.

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He did not advocate separation between legislative and federative powers. To Montesquieu,
“when the legislative and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty.”

Thus, the kernel of separation of powers is the non-fusion of the functions of government in one
person or body of persons i.e. exercise of law-making powers by the legislature, the
implementation or exercise of executive powers by the executive and the interpretation or
adjudicative powers by the courts or independent judiciary.

However, a complete separation of powers, in the sense of division of the three functions of
government amongst the three arms with no overlapping or interrelationship i.e. complete
compartmentalization of powers, even if theoretically feasible, will not be practically viable as it
will make governmental powers inoperable and bring the government to a standstill. According
to Oyewo, a corollary to the doctrine of separation of powers is the principle of “checks and
balances” which seeks to secure the control or limitation of power vested in one arm of
government by another arm of government, as exemplified in the exercise of lawmaking powers
of the legislature under modern constitutions whereby it is circumscribed or checked by the
requirement of assent or veto by the executive, or the exercise of legislative or executive powers
that is subject to the judicial review of the courts. The spectrum of the adaptation of the doctrine
of separation of powers has varied between the form of constitutional democracy. Thus in a
parliamentary system, the powers of both the legislature and executive are fused e.g. The British
Constitutional Democracy model. In a Presidential system, there is a clear separation of powers
in the „functions and functionaries‟ between the various arms of government e.g. The United
States of America Constitutional Democracy model.

Various writers, jurists and scholars have commented on the doctrine of separation of powers.
According to Blackstone,
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“in all tyrannical governments, the supreme magistracy, or the right both of making and
enforcing laws is vested in one and the same man or one and the same body of men; and
whenever these two powers are united together, there can be no public liberty.”

Prof. Ben Nwabueze SAN said;

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“Concentration of government powers in the hands of one individual is the very definition of
dictatorship, and absolute power is by its very nature arbitrary, capricious and despotic.”

James Madison, a republican and 4th President of the United States of America said;

“… there can be no public liberty where the legislative and executive powers are united in the
same person or body of magistrates or if the power of judging be not separated from the
legislative and executive powers.”

The adaptation of this concept has been a prominent feature of Nigerian Constitutions since
independence. The 1960 and 1963 Constitutions adopted the British concept of separation of
powers whereby power was shared between the judiciary on one side, and the parliament and the
executive on the other. However, the 1979, 1989 and 1999 Constitutions adapted the American
style, where there is a clear separation of the powers of the government. Under these
Constitutions, Section 4 vested legislative powers in the National Assembly and state house of
assembly, Section 5 vested executive powers on the President and Governors and Section 6
vested judicial powers in the constitution established by the Constitution. The separation is also
that of functions and functionaries as enumerated in Chapter V (legislature), Chapter VI
(executive), and Chapter VII (judicature) of the Constitution. Thus, in keeping with the spirit of
the concept, Section 147(4) of the Constitution provides that a member of the legislature
appointed as a minister of the federation must vacate his seat in the legislature.

However, the strict compartmentalization or division of power is not practicable in

modern government, as the constitutional arrangement allows for the practice of corollary
principle of checks and balances by involving the different arms of government in the discharge
of the functions of the other arms of government. Thus, Abiola Ojo observed that;

“… a complete separation of powers is neither practicable nor desirable for effective

government. What the doctrine can be taken to mean is the prevention of tyranny by the
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conferment of too much power on anyone, person or body and the check of one power by
another.” Thus, even when a power is primarily vested in one arm of government another arm of
government can be constitutionally involved in the performance of that major function.

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Thus, under Sections 58 and 59 of the Constitution, the President can exercise veto powers over
laws made by the legislature, but such can be overruled by two-thirds majority of the National
Assembly. Thus, in National Assembly v. President of the Federal Republic of Nigeria, the
court held that a Presidential veto can only be overturned by the votes of two-thirds majority of
the whole house and not a quorum and there must be a full reconsideration of the vetoed bill
before being passed into law. Also, in Olisa Agbakoba SAN v. The National Assembly and The
A.G. of the Federation, it was held that without the President‟s assent the National Assembly
cannot validly exercise its powers to amend or alter the Constitution under Section 9 of the
Constitution. Section 32 of the Constitution provides that the President can make regulations on
citizenship but it must be laid before the legislature. The Constitution by virtue of Sections 175
and 211 of the Constitutions vests the power of prerogative of mercy or pardon on the President
and State Governors. These powers clearly amount to a check on the powers of the judiciary to
impose sentence after a due process of adjudication. This is also the case in the appointment of
judges even though with the approval of the legislature. The provisions of Section 147(2) and
192(2) of the Constitution which empowers the legislature to confirm the President‟s or
Governor‟s appointments of the members of the executive council is a clear imposition of
“checks and balances” as a limitation on the application of the principle of separation of powers.
Thus, in Inakoju v. Adeleke, the Supreme Court adopted a pragmatic approach in its
interpretation of constitutional provision adopting the principle when it noted that the principle
of separation of powers under the constitution is meant to guarantee good governance and
development and to prevent abuse of power. Section 59 grants the National Assembly the power
of budget approval through the passing of appropriation bills. Sections 80-83 grants the National
Assembly the power of control over public funds. Section 88 confers quasi-judicial powers of
conducting investigations into exercise of executive powers by the Minister or the Legislature.
Section 84 of the Constitution confers the power to determine the remuneration of members of
the executive and judiciary. The investigative power of the legislature is aimed at exposing
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arbitrariness, abuse of power, corruption and bad governance on the part of the executive.
Section 143 confers the power of impeachment on the legislature as a result of „gross
misconduct‟. Constitutional procedure must however be followed. In Morebishe v. Lagos State
House of Assembly, the court stated that the purpose of separation of powers under the
constitution is to prevent exercise of arbitrary powers by any of the three arms of government.

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However, Oyewo opined that, “in practice the principle of separation of powers brings about
conflicts, deadlocks and threats of divided and fail government when two arms of government
clash intensely over issues that involve the exercise of their powers.” In trying to gain an upper
hand, the legislature tend to resort to the threat of or use of the power of removal or
impeachment of the chief executive until recently when the supreme court in Inakoju v. Adeleke,
where it gave a strict interpretation to the impeachment provisions to overrule the earlier liberal
interpretation of the court of appeal in Balarabe Musa v. Hamza. This was the most
constitutionally compelling power of the legislature over the executive.

Also, Section 6(6)(b) provides for the separation of judicial function and for the courts to
be able to interprete the constitution and laws and adjudication between the arms of government
on the one hand and between the governmental organs and citizens or group of persons on the
other hand. In Governor of Kaduna State v. Kaduna State House of Assembly, the governor of
Kaduna State sought a declaration that the amendments of the Local Government Edict were
void because they encroached upon his executive powers because they violated Section 4 and 5
of the 1979 Constitution the court declared some of the amendments void and some
unconstitutional and held inter alia that the doctrine of separation of powers is enshrined in the
1979 Constitution. In A.G. Bendel State v. A.G. Fed and Ors, the court held inter alia that by
virtue of Section 4(8) of the 1979 Constitution, the courts of law in Nigeria have the duty to see
that there is no infraction of the exercise of legislative power, whether substantive or procedural,
as laid down in the constitution. If there is such infraction, the courts have the power to declare
any legislation passed pursuant to it unconstitutional and invalid. In Honourable Godwin
Jideonwo and Ors. v. Gov. of Bendel State and Ors. the High Court held among other things
that the constitution clearly sets out the powers of the three arms of government, and if the
legislature passes any law which is beyond its competence, and which it has no jurisdiction to
pass, whether or not it was passed by all the members of the house, any member of the house of
the public who is affected can challenge it in court, and nothing prevents the court from setting it
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aside and declaring it ultra vires the legislature. Also, as was held in Adesanya v. President of
Nigeria and Tony Momoh v. Senate of the National Assembly, nothing prevents a court of
competent jurisdiction from hearing and determining matters that had been discussed in the
house.

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 In conclusion, the doctrine of separation of powers seeks to prevent anarchy and
arbitrariness by decentralizing powers, however, since a complete decentralization of power is
not possible, the doctrine of checks and balances has been developed as its corollary in keeping
with the spirit of preventing arbitrariness.

2. Rule of Law: The concept of rule of law is considered to be the oldest of all constitutional
concepts and is one of the most basic concepts since it has given birth to other constitutional
concepts. The concept is also recognized as a synonym of law and order. The roots for the
concept of rule of law can be found in ancient Greek philosophies and its obsession with
governmental powers, in the theories of natural law. Origins and justifications for the concept of
rule of law were found in the writings of John Locke on “social contract”. He believed that the
source of political power was derived from the people and not imposed from above. According
to Aristotle, “the rule of law is preferable to that of any individual”. Bracton opined that; “the
king himself ought not to be subject to man, but subject to God and to the law, because the law
makes him king”. In Gouriet v. Union of Post Office Workers & ors, Lord Denning noted “Be
you ever so high, the law is above you”

The last stage in the development of the concept of rule of law came with the writings of A.V.
Dicey who gave the tripartite formula of:

- Absence of arbitrary power;

- Equality before the Law; and

- Enforcement of Fundamental Human Rights.

i. Absence of arbitrary power: This means that no man should be punished or made to suffer for
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any law that is not known or established. Also, nobody should be punished for an offence
without notice of the commission of the offence. Where this is not the case, there is an arbitrary
exercise of power. This principle also excludes the existence of prerogative or wide, arbitrary or
discretionary powers. It also means the supremacy or predominance of regular law. This
therefore excludes the exercise of discretionary powers often wielded by administrative agencies.
This aspect of his theory has been greatly criticized especially because administrative agencies

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have become a veritable fourth arm of government which deals with the implementation of
highly technical and complex matters involving immediate interests of citizens.

ii. Equality before the Law: This simply means the equality of all persons before the law and the
equal subjection of all classes to the ordinary laws of the land as administered by the ordinary
law courts. He however allowed for some modifications here because some acts of parliament
gave judicial or quasi-judicial powers to some executive authorities. This principle is not strictly
applied in practice. For instance, Section 308 of the 1999 Constitution confers immunity on
certain persons. There are also inequalities and preferential treatments in certain professions e.g.
the privileges that a Senior Advocate of Nigeria enjoys as against other lawyers. There is also
circumstantial inequality which often occurs where people receive favours from whoever is
giving them because of the special relationship between them. In addition, social and economic
inequalities in society also affect the subjection of persons to the operation of the law.

iii. Guarantee of Fundamental Human Rights: The third principle is the enforcement of the
fundamental human rights usually guaranteed by the constitution. Thus, there are judicial
decisions determining the rights of private persons in particular cases brought before the courts.

According to Mowoe, from Dicey‟s three postulations, it is obvious that before the rule of law
can exist in a society, the following must be in place:

(g) Supremacy of written regular law made by the lawmakers;

(h) Certainty and regularity of laws;

(i) Absence of arbitrary or wide discretionary powers on the part of government or its
agencies;

(j) Equality before the law;

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(k) Administration of the law by the ordinary law courts;

(l) Enforcement of some minimum rights.

The Diceyan formulation of rule of law has been subjected to severe criticisms by scholars.
Mowoe opines that Dicey‟s work was partly as a criticism of the French droit administrative

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under which a special court was established for administrative actions. RFV Heuston is of the
view that it has been said that Dicey erred in saying that the doctrine of “rule of law” excludes
the existence even of wide discretionary authority on the part of government, and also been
criticized as an attempt to turn particular political and economic theories into a constitutional
doctrine, especially as the granting of wide discretionary powers to ministers through simple
delegation of powers is now a settled feature of legislation and the process of delegation of
powers by the Legislature under most modern constitutional governments.

It is also applicable under Nigerian Constitutional Law. For instance: the Supreme Court‟s
decisions in Ilori v. State and Ibrahim v. State in interpreting Sections 160 and 191 of the 1979
Constitution to confer wide discretionary powers on the Attorney-General of the Federation and
the States in the exercise of the power to enter a nolle prosequi in criminal trials. In Stitch v.
A.G. Federation, it was held that the exercise of discretionary powers of the minister is subject
to judicial review, following the English decision in Padfield v. Ministry of Agriculture,
Fisheries and Food. In Iwuji v. Commissioner for Establishment per Karibi-Whyte JSC, the
Supreme Court expounded on the law of discretionary powers.

HWR Wade is of the view that Dicey‟s views were based on a mistaken conclusion that the
administrative courts of France existed for the purpose of giving officials certain special rights,
privileges or prerogatives as against that of private citizens. This is however not the case since
courts greatly compensate citizens aggrieved about administrative actions. According to Wade,
the rule of law connotes the following in modern times; supremacy of the law, all acts of
government to be conducted within a framework of defined rules and regulations, an independent
judiciary to pronounce on the legality of government actions, equality before the law with
recognized exceptions and no punishment outside the authority of the law.

In Nigeria, under civilian rule, the function of rule of law is performed by a supreme
constitution which ensures fair hearing of trials in all cases and guarantees the preservation of
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rights (except where deprivation is allowed under the provisions of the constitution) through the
subjection of all classes and persons including government and its agencies to its provisions.

The idea of equal subjection of governmental authorities and personnel and the citizens alike to
the law and the implied prohibition of exemptions based on governmental authority or position

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held by any public official or arm of government is a cardinal aspect of rule of law which has
been interpreted to mean that no one should be above the law under Nigerian law as expressed in
the case of Military Governor of Lagos State v. Ojukwu. In Kalu v. The State, Oputa JSC in
espousing the principle of equality before the law aptly stated that; “it should be the same open
and even-handed justice, blind to all social distinctions and disparities in wealth and status and
no respecter of persons.”

The provisions of Section 6(6)(b) of the 1999 Constitution vests power of judicial review on the
judiciary on all actions of the legislators, ministers and administrative agencies. The requirement
of equality before the law has also been extended to mean the absence of discrimination between
individuals in governmental actions and decisions based solely on unfair or arbitrary grounds,
such as race, colour, ethnicity, place of origin, political opinion, creed or sex, religion and this is
expressed as the social objective of Section 17 and made justiciable as a right to freedom from
discrimination in Section 42.

In Aoko v. Fagbemi, the court held that nobody could be punished for an offence that
was not part of any written law as at the time it was committed. In Shugaba Sbdulrahman
Darman v. Federal Minister of Internal Affairs, the court held that the deportation of a family
member of the Great Nigeria People‟s Party and a majority leader in the Borno state house of
assembly was arbitrary, oppressive and unconstitutional being contrary to the provisions of
Section 23 and 28 of the 1979 Constitution. In Attorney General of the Federation v. Attorney
General of Bendel State, the Supreme Court held that the procedure adopted by the national
assembly in passing the appropriation bill was unconstitutional, null and void. In other words, it
is contrary to the „rule of law‟ as represented by the constitution. In Attorney General of Abia
State and Others v. Attorney General of the Federation, the Supreme Court held inter alia, that
no law enacted by the national assembly can constitutionally or validly increase or alter the
tenure of office of elected officers of the local government except in relation to the Federal
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Capital Territory Abuja. In Nigerian Soft Drinks Company v. Attorney General Lagos, the
Supreme Court held inter alia, that the Ogun State Law which sought to regulate inter-state trade
and commerce was unconstitutional and the VAT Decree 102 usurped the residual powers of the
state under item 9 of the concurrent legislative list, by purporting to deal with such trade was
inconsistent with the constitution. In Doherty v. Balewa, the plaintiff bank sought a declaration

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that the Commission of Tribunal and Inquiry Act under which the commission was appointed
was unconstitutional since it purported to oust the jurisdiction of the courts and was contrary to
the provisions of the constitution. The Federal Supreme Court held that the Act was not within
the legislative competence of the Federal Parliament in so far as it purports to have effect in
relation to matters and things within the Federal competence anywhere in the Federation. Also,
the general powers given to the prime minister under Section 3(1) were held to be in excess of
the powers of the parliament under the constitution. Also, the provisions excluding inquiry by
any court were unconstitutional as they purported to limit the jurisdiction of the court.

In Gov. Peter Obi v. INEC, Peter Obi was sworn in as governor of Anambra following the result
of a tribunal which unseated Chris Ngige on 17th March 2006 and he told INEC not to conduct
elections on 14th April, 2007 as the office would not be vacant in accordance with Section
180(2a) for his four year tenure. INEC conducted election despite the suit in court. He lost at
trial and appeal court but Supreme Court was in his favour and Andy Uba was asked to vacate
office. Also, in Ameachi v. INEC, Amaechi won the PDP Gubernatorial elections but his name
was substituted for Omelua while his suit was pending, elections were held and Omelua was
sworn in. the Supreme Court ordered Omelua to leave office and Amaechi should be sworn in.
the Supreme Court ordered Omelua to leave office and Amaechi should be sworn in. Also, in
Edo where INEC declared Oseirhemen as winner, after investigations, Oshiomole was sworn in
and rule of law was upheld. In A.G. Bendel State v. Aideyan, the appellant state government
purportedly acquired the plaintiff respondent‟s building. Not being satisfied, the respondent sued
the state government. On appeal, the Supreme Court held that the respondent was entitled to his
building. Any act of governance which is not covered under an enabling law is a nullity.

Although it is technically not possible for the rule of law to be in existence under a
military government because the prerequisites for such existence cannot be realized under
dictatorial rule since the manner of coming into power negates the principles of the supremacy of
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the law provided for under Section 1(2) of the 1999 Constitution, the Supreme Court has held in
a plethora of cases that the rule of law is tenable under a military regime. In Military Governor
of Lagos State v. Ojukwu, the Supreme Court declared the act of the executive (military) as
executive lawlessness and held that the rule of law and due process must be observed even in a

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military regime. In Lakanmi and anor. v. A.G. Western State, the court also espoused the
doctrine of rule of law under military rule.

Also, in Jackson v. Gowon, the court held that if it is proved that a particular section of the
constitution will be violated by the proceedings in the tribunal of inquiry decree, then, of course,
whether there is a provision that no court of law should inquire into such proceedings then one
would be bound to declare that such a proceeding is invalid and unconstitutional.

In conclusion, the rule of law is the most basic of all public law concepts and is the bond that
binds a democratic society and has even been held to be in existence in a military or dictatorial
regime.

2. (a) The Legislature has the primary responsibility of making laws in any political entity and
is empowered to do this for the peace, order and good governance of that political entity.

Section 4(6) and (7) of the 1999 Constitution empowers the State House of Assembly to make
laws for the peace, order and good governance of the state. By virtue of Section 4(5), such laws
made must not be inconsistent with any law made by the national assembly. Any law so made
will be to the extent of its inconsistency void. According to Ogwuegbu JSC in Attorney General
of Abia State & Ors v. Attorney General of the Federation, under Section 4(7)(a) a state house
of assembly can legislate on matters on the concurrent list as well as on all other matters
“supplementary” to matters on the concurrent legislative list.

In conclusion, the law passed by the legislature of PUPA State would be deemed to have been
validly passed if it does not contravene any of the constitutional provisions above.

(b)

(c) The issue arising for legal determination is whether or not Senator Ishola has the right to
request the Minister to present the document detailing the Ministry‟s budget in the previous year.
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Section 88(1) of the 1999 Constitution empowers each house of the national assembly to
direct or cause to direct an investigation into any matter or thing with respect to which it has
power to make laws and the conduct of affairs of any person, authority, ministry or government
department charged, or intended to be charged with the duty of or responsibility for; executing or

313
administering laws enacted by the national assembly and disbursing or administering moneys
appropriated or to be appropriated by the national assembly.

Section 88(2) states that the powers conferred on the National Assembly are exercisable
for the purpose of enabling it to make laws with respect to any matter within its legislative
competence and correct any defects in existing laws; and expose corruption, inefficiency or
waste in the execution or administration of laws within its legislative competence and in the
disbursement or administration of funds appropriated by it.

In application of the constitutional rules and provisions above, any house of the National
Assembly has the power to invite a member of the executive to appear before it for the purposes
provided for in the constitution.

In conclusion, Senator Ishola has the power to invite the minister to appear before it and request
the minister to present the documents detailing the Ministry‟s budget in the previous year.

(d) The issue arising for legal determination is whether or not Senator Ishola has the power
to request the sum of N1 million to facilitate the sitting of the committee.

As a result, of the powers conferred on the National Assembly under Sections 88 and 89,
where there is allegation of corruption or waste in a government department for example, an
investigation can be set up to look into it. This power is a very potent weapon in the hands of the
legislature which needs the vigilance of the courts to be held in check. Thus, the courts have held
that it cannot be wielded in such a way as to derogate from the rights granted by the constitution.
Thus, in Adikwu and Others v. National Assembly and in Tony Momoh v. Senate, the courts
refused to allow the legislature to wield its investigative authority in such a way as to derogate
from the fundamental right to freedom of speech and expression. In Adikwu’s case, the
fraudulent claim of salaries and allowances for fictitious staff by legislators‟ was published in the
Punch whilst in Tony Momoh’s case; an article was published about senator‟s lobbying for
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contracts from the executive. In both cases, the court held that the legislature could not use its
investigative powers under the constitution for purposes other than those specifically provided
for as stated above. The persons sought to be sanctioned were not members of the executive or
its agents.

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 In application of the constitutional rule explained above, the power of investigation of the
national assembly is to be exercised within constitutional limits and cannot be wielded in a way
as to derogate from the rights conferred by the constitution.

a In conclusion, Senator Ishola has acted ultra vires his powers by requesting the federal
minister to pay the sum of N1 million to facilitate the sitting of the committee.

5(a) The issue arising for legal determination is whether or not Mohammed Sule is qualified
to contest for the position of chairman in Mainland local government council area of lagos state.

Section 106 of the Electoral Act provides that a person shall be qualified for election as
a local government council area chairman if: he is a citizen of Nigeria, is registered as a voter,
has attained the age of 30 years, he is educated up to at least school certificate level or its
equivalent and he is a member of a political party and is sponsored by that party.

In application of the above provisions of the electoral act, Mohammed Sule is not qualified to
contest for the position of chairman.

In conclusion, Mohammed Sule is advised not to contest for the position as he does not
meet the requirements.

5(b) Local Government is the third tier of government and has been established at the local
level to cater for the needs of people at the local level. It has been defined variously by different
authorities and scholars.

The United Nations Division of Public Administration defined it as a political subdivision of a

nation, or in a federal system, a state which is constituted by law and has substantial control of
local affairs, including the power to impose taxes or exact labour for prescribed purposes.

According to G.O. Orewa defined it as the lowest unit of administration to whose laws and
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regulations, the communities who live in a defined geographical area with common social and
political ties are subject.

Section 7(1) of the 1999 Constitution guarantees the establishment of democratically elected
governments. Their establishment, structure and compositions, finance and functions are to be
promulgated upon by the State Houses of Assembly which also has the authority to repeal or

315
amend such laws when the need arises. However, the number of minimum number of local
governments in each state has been pre-determined by the constitution in the first schedule.

The House of Assembly has the authority to create new local government areas under the
provisions of Section 8(3) of the 1999 Constitution and it provides that a bill for a law of a
house of assembly for the purpose of creating a new local government area shall only be passed
if:

(a) a request supported by at least two-thirds majority of members (representing the area
demanding the creation of the new local government area) in each of the following
namely;

(i) the house of assembly in respect of the area and

(ii) the local government councils in respect of the area, is received by the house of
assembly;

(b) a proposal for the creation of the local government area is thereafter approved in a
referendum by at least two-thirds majority of the people of the local government area
where the demand for the proposed local government area originated;

(c) the result of the referendum is then approved by a simple majority of the members in
each local government councils in the state; and

(d) the result of the referendum is then approved by a resolution passed by two-thirds
majority of members of the House of Assembly.

Sections 8(5) and (6) of the 1999 Constitution provides that after the local government has been
created, the relevant house of assembly is to make adequate returns to each house of the national
assembly to enable it make the necessary adjustments under Section 3 of the constitution and in
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Parts I and II of the first schedule to the constitution. Also, no additional input is necessary from
the national assembly or the president in relation to whether or not additional local governments
should be created. It is the absolute preserve of the Houses of Assembly, but must be exercised
in accordance with the provisions of the constitution as was held in A.G. Lagos v. A.G.
Federation.

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The functions to be conferred on the local government authority are inclusive of those set out in
the Fourth schedule to the Constitution. Thus, for example, they are constitutionally expected
to participate with the state in the economic planning and development of their area, for which an
economic planning board is to be established. Schedule 4 provides that the function of the local
governments also includes in a summary:

 Collection of rates, radio and television licences;

 Cemeteries, burial grounds, homes for the destitute or infirm;

 Licensing of Bicycles, trucks not mechanically propelled, Canoes, wheel barrows,

Carts;

 Slaughter houses, markets, motor parks, public conveniences;

 Construction and maintenance of roads, streets, street lights, drains, public

highways, parks, gardens, open spaces, other public facilities as may be
prescribed by the House of Assembly;

 Naming Streets, roads, numbering houses;

 Provision and maintenance of public conveniences, sewage, refuse disposal;

 Registration of births, deaths, marriages;

 Assessment of private houses, tenement rates as prescribed by House of

Assembly;

 Control and regulation of outdoor advertising and boarding, movement and

keeping of pets, shops and kiosk, restaurant, bakeries and places for sale of food;
licensing, regulation and control of liquor.
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The Local Government is also empowered to provide and maintain primary, adult and
vocational education; develop agriculture and natural resources other than minerals; provide and
maintain health services; and perform other functions as may be conferred by the house of
assembly.

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 In conclusion, the functions and procedure to be followed in creating a local government
have been provided for in the constitution and are as discussed above

UNIVERSITY OF LAGOS

FACULTY OF LAW

LL.B DEGREE EXAMINATION

FIRST SEMESTER, 2009/2010 SESSION

PUL 201: CONSTITUTIIONAL LAW

Time Allowed: 2 hours 30 mins.

INSTRUCTION: ATTEMPT ALL QUESTIONS

1. The President in a constitutional democracy is like the conductor of a mighty orchestra seeing
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to it that everything is in harmony. He therefore has the power to do anything unless expressly
forbidden by the constitution.

Discuss the above statement in relation to the executive powers of the president under the 1999
constitution.

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2. Judicial Officers shall be independent in the full sense, from external direction by any political
and administrative superiors in the determination of cases and inwardly free from the influence
of personal gain and partisan or popular bias.

Discuss the above statement with the aid of constitutional provisions and decided cases on
judicial independence.

3. In spite of the appearance of words “Federation” and “Federal Republic of Nigeria” in Section
2 of the 1999 Constitution, there is nothing Federal about the constitution. That Constitution
lacks the qualities of a Federal Constitution and is therefore incapable of ensuring true federalism
in Nigeria.

Examine the accuracy or otherwise of the above statement in the light of the relevant provisions
of the 1999 Constitution and decided cases.

4. Shaidat and Aminat are biological children of Mr. and Mrs. Ilupeju who are Nigerians. Shaidat
was born in Togo in 1990 while Aminat was born in Lagos in 1995 after Mr. and Mrs. Ilupeju
had returned to Nigeria. Shaidat was convicted of manslaughter by an Igbosere Chief Magistrate
Court and sentenced to 5 years imprisonment in January, 2009. The conviction and sentence of
Shaidat were brought to the attention of the President of the Federal Republic of Nigeria. The
President in April 2009 decided to deprive Shaidat of her citizenship, expel her from Nigeria and
deport her to Togo. In 2009, Aminat married an American expatriate who was I the employment
with an oil Company under Islamic Customary Law. She plans to relocate to the United States of
America with her husband after his tour of duty in Nigeria. She also intends to reference her
Nigerian Citizenship. Advise Shaidat and Aminat.

5. Discuss the concept of Separation of Powers and its operation under the 1999 Constitution of
the Federal Republic of Nigeria.
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6. “The post-independence Constitution making processes have till date failed to produce an
autochthonous constitution in Nigeria” Do you agree?

ANSWERS

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2. The Judiciary is the arm of government responsible for interpreting the law and
adjudicating disputes between parties. It is established under Section 6 of the Constitution and
covers the personnel and institutions through which the laws of the country are interpreted in the
determination of rights and obligations of the citizens as well as that of government. It is without
doubt said to be the last hope of the common man in whatever system that is in place. The term
“courts” is synonymous with judiciary and is sometimes used when referring to judiciary.

Thus, according to Adekeye JSC in Agbiti v. Nigerian Navy, the courts are set up under the
constitution, decrees, acts, laws, and edicts. They cloak the courts with the powers and
jurisdiction of adjudication.

Black’s Law Dictionary defines the term judiciary as that branch of government invested with
judicial power; the system of courts in a country; the body of judges; the bench; that branch of
government which is intended to interpret, construe and apply the law.

According to Oputa JSC, the Judiciary in a free and democratic society is the deepest gulf
between the citizens and all forms of totalitarian rule. It is the true bridge of any genuine
democracy. In other words, it is a symbol of true democracy.

According to Professor Oloko, the judiciary is the specialized differentiated structures,

processes and personnel that are devoted to the task of performing on a continuous basis, one of
the three inter-related and independent governmental functions in modern and modernizing
societies. The specific governmental functions performed by the judiciary in these societies are
what are known as rule adjudication as distinct from the two governmental functions of rule
making and rule application.

Justice Nnamani believes the Judiciary has been generally acknowledged as the guardian of our
constitution, the protector of our constitution, the protector of our cherished governance under
the rule of law, the guardian of our fundamental rights, the enforcer of all the laws without which
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the stability of society can be threatened, the maintainer of public order – and public security, the
guarantee against arbitrariness and generally the only insurance for a just and happy society.
In the light of this very fundamental role that the judiciary performs in society, there is no
doubt about the importance of ensuring its independence and impartiality in carrying out its
functions. If the rule of law must thrive, there must be an independent judiciary.

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In recognition of this fact, Winston Churchill opined that the principle of complete
independence of the judiciary… is the foundation of many things in our island life… It is
perhaps one of the deepest gulfs between us and all forms of totalitarian rule.

Kelly C.B. also posited that it is essential in all courts that the judges who are appointed to
administer the law should be permitted to administer it under the protection of the law
independently and freely, without favour and without fear.

In Olisa Agbakoba v. SSS, it was said that the Judiciary must be free from the apron strings of
the executive. In the practice of rule of law, separation of power and constitutionalism where the
judiciary is seen as an arm of government to check the abuse of power by the other arm of
government particularly the executive and the legislature. It therefore means that they must be
free from interference and influence from other arms of government, particularly the executive in
the discharge of its function. The Judiciary must be impartial and independent in the adjudication
function as observed by Kayode Eso JSC that independence of the Judiciary is the sine qua non
for all the judges in all the hierarchy of court – for the performance of their role which the
constitution has assigned to them.

In considering whether the judiciary is independent, some mechanisms such as;

conditions of service particularly remuneration by legislature and appointment by the executive
and sanctions by the National Judicial Council are to be considered.

Mode of Appointment: Appointment is done both at the federal level and state level. At the
federal, appointment by the president on the recommendation of the national judicial council
with the approval of the senate and at the state level by the governor on the recommendation of
the national judicial council subject to the confirmation by the state house of assembly. There is
also appointment by the president on recommendation of the national judicial council without
confirmation by senate. The first mode applies to the Chief Judge of the Federation, Justice of
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the Supreme Court, President of the Court of Appeal, Chief Judge of the Federal High Court of
State and FCT, Grand Khadi of the Sharia Court of Appeal or FCT, President of the Customary
Court of Appeal of FCT.

The second mode is used for the justices of the Court of Appeal, Judges of the Federal High
Court, Kadi or Judge of the Sharia Court and Customary Court of FCT respectively and in

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relation to the state; the governor on recommendation of the National Judicial Council, the Chief
Judge of the State, President of the Customary Court of Appeal, Grand Khadi, and on the second
mode, Kadi of the Sharia Court and Judges of the Customary Court of Appeal. Also, before a
person is appointed, he must satisfy the constitutional requirement for each level of government.

It must also be observed that neither the executive nor the legislature is presumed by the
constitution to exert undue influence in appointment of judicial officers, however, in some
instances, the issue of undue influence has been raised particularly with the chief executive
officers have appointed their spouses to judicial officers over and above others who might be
considered to be more meritorious in qualification than the appointed spouse. This issue was
raised in the appointment of Justice Mary Odili instead of Dowton West. It was also alleged in
the situation of Mrs. Atinuke Ige. Certain things must be considered in the independence of
appointment.

Caliber of Judges: In Nigeria, majority of the judges are appointed from the magistracy and the
bar. The appointment of academic justices like Niki Tobi, TO Elias, Karibi Whyte have gone
into oblivion as they are very few.

Also, a high court judge is usually promoted to the court o appeal and to the Supreme Court,
however in other jurisdictions, it is not so. For instance in England, a person can go from being a
queen‟s counsel to being a judge.

Openness of appointment: Here, the principle of federal character comes to play. Once there
have been minimum qualification, they should be appointed across the geo-political zones.
However, even with this, a section can gain predominance. For instance, in Ikene and Abeokuta
which will create an uneven playground.

Mode of Removal: As seen in the case of Elelu-Habeeb v. AG Federation, judges cannot be

arbitrarily removed under our constitution. A judge can only be removed pursuant to the
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provision of Section 292 of the Constitution.

(a) Except on retirement, the chief judge and chief justice can be removed based on
inability to perform his function of office, because of ill-health, incapacity, infirmity
of the body or incapacity of the mind.

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 (b) Misconduct or infraction of the Code of Ethics.

The National Judicial Council: This is a body that deals with the discipline of judges. However,
unfortunately, this body has been criticized and this was the situation in the case of Justice
Salami.

Discipline is about accountability, a judge must be made accountable for the type of judgement
he delivers e.g. a High Court Judge who gives judgement on electoral matters which was
supposed to be given by an election tribunal. On independence of the judiciary, generally the
judge has the power to regulate court procedure. The Chief Justice is the accounting officer; he
controls the purse, budget and moneys disbursed into the account.

Remuneration Section 84(1)(4): Although there is financial independence as the remuneration by

virtue of Section 84(2) shall be charged on the Consolidated Revenue Fund and cannot be
altered to their detriment. It must be noted that in times past, the executive impound the property
of judges who do not give judgement in their favour and stop their salaries but now, the recurrent
expenditure of the judicial officers through the federation shall be charged on the Consolidated
Revenue Fund.

Tenure of Office of Judges and at retirement, judicial officers are entitled to pension.

In conclusion, as regards the independence of the judiciary from the realist perspective, it
must be noted that despite these constitutional provisions, the independence of the judiciary is
determined by different factors which include;

(a) the culture of independence as the quality of the bench is determined by the quality of the bar,

(b) judges appointed must advance the course of judicial independence by what is called
accountability i.e. the way money is handled, judgement is given and punctuality.
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(c) the judiciary must remove itself from politics and undue influence in order to be fair.

(d) avoiding the breaches of the code of ethics of the judiciary that can lead to misconduct.

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4. The first issue arising for legal determination is whether or not the President can deprive
Shaidat of her citizenship and expel her from Nigeria.

Section 25(1)(c) of the 1999 Constitution provides that every person born outside
Nigeria either of whose parents is a citizen of Nigeria.

Also, Section 30 of the 1999 Constitution empowers the President to deprive a person who is a
not a citizen of Nigeria by birth if he has within seven years of having become a citizen of
Nigeria been sentenced to a term of not less than three years or shown himself by act or speech
to be disloyal towards Nigeria or has during any war in which Nigeria was engaged unlawfully
traded with the enemy or assisted the enemy of Nigeria in that war.

In application of this rule, Shaidat acquired her citizenship of Nigeria by birth and cannot
be deprived of her citizenship of Nigeria by the President.

In conclusion, the President is advised to cancel his decision to expel Shaidat from the
country as she is a citizen of Nigeria by birth.

The second issue arising for legal determination is whether or not Aminat can reference
her Nigerian citizenship.

Section 25 (1)(b) provides that every person born in Nigeria after the date of
independence either of whose parents or any of whose grandparents is a citizen of Nigeria is a
citizen of Nigeria by birth.

Section 28 of the 1999 Constitution provides that a person other than a citizen of
Nigeria by birth who acquires the citizenship of another country of which he is not a citizen of
Nigeria by birth shall forfeit forthwith his Nigerian Citizenship.

In application of the above rules, Aminat is a citizen of Nigeria by birth and if she desires
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to reference her Nigerian citizenship in America, she will be acting within the limits of her
rights.

In conclusion, Aminat will not be in breach of any constitutional provision of she decides
to reference her citizenship since she‟s a citizen of Nigeria.

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5. The doctrine of separation of powers is fundamentally a doctrine opposed to the
concentration of state sovereign powers in a single person or body of persons, since that may
lead tot they tyranny and threat to democratic governance, and this doctrine has been expressed
in stronger or weaker form in many constitutions. It is seen as one of the devices used by Anglo-
American system of government to protect the rule of law and prevent the exercise of arbitrary
power by the sovereign. The concept stemmed from the writings of Locke and Montesquieu.
The former argued that it is foolhardy to give lawmakers the power to execute laws made by
them because, in the process, they may exempt themselves from the observance of the law. To
prevent arbitrariness, he championed creation of a constitutionally limited government and three-
fold division of government into:

(g) Legislative power for creation of rules;

(h) Executive power by which laws are enforced; and

(i) Federative Powers which concerns making of war/peace and external relations.

He did not advocate separation between legislative and federative powers. To Montesquieu,
“when the legislative and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty.”

Thus, the kernel of separation of powers is the non-fusion of the functions of government in one
person or body of persons i.e. exercise of law-making powers by the legislature, the
implementation or exercise of executive powers by the executive and the interpretation or
adjudicative powers by the courts or independent judiciary.

However, a complete separation of powers, in the sense of division of the three functions of
government amongst the three arms with no overlapping or interrelationship i.e. complete
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compartmentalization of powers, even if theoretically feasible, will not be practically viable as it

will make governmental powers inoperable and bring the government to a standstill. According
to Oyewo, a corollary to the doctrine of separation of powers is the principle of “checks and
balances” which seeks to secure the control or limitation of power vested in one arm of
government by another arm of government, as exemplified in the exercise of lawmaking powers

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of the legislature under modern constitutions whereby it is circumscribed or checked by the
requirement of assent or veto by the executive, or the exercise of legislative or executive powers
that is subject to the judicial review of the courts. The spectrum of the adaptation of the doctrine
of separation of powers has varied between the form of constitutional democracy. Thus in a
parliamentary system, the powers of both the legislature and executive are fused e.g. The British
Constitutional Democracy model. In a Presidential system, there is a clear separation of powers
in the „functions and functionaries‟ between the various arms of government e.g. The United
States of America Constitutional Democracy model.

Various writers, jurists and scholars have commented on the doctrine of separation of powers.
According to Blackstone,

“in all tyrannical governments, the supreme magistracy, or the right both of making and
enforcing laws is vested in one and the same man or one and the same body of men; and
whenever these two powers are united together, there can be no public liberty.”

Prof. Ben Nwabueze SAN said;

“Concentration of government powers in the hands of one individual is the very definition of
dictatorship, and absolute power is by its very nature arbitrary, capricious and despotic.”

James Madison, a republican and 4th President of the United States of America said;

“… there can be no public liberty where the legislative and executive powers are united in the
same person or body of magistrates or if the power of judging be not separated from the
legislative and executive powers.”

The adaptation of this concept has been a prominent feature of Nigerian Constitutions since
independence. The 1960 and 1963 Constitutions adopted the British concept of separation of
powers whereby power was shared between the judiciary on one side, and the parliament and the
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executive on the other. However, the 1979, 1989 and 1999 Constitutions adapted the American
style, where there is a clear separation of the powers of the government. Under these
Constitutions, Section 4 vested legislative powers in the National Assembly and state house of
assembly, Section 5 vested executive powers on the President and Governors and Section 6
vested judicial powers in the constitution established by the Constitution. The separation is also

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that of functions and functionaries as enumerated in Chapter V (legislature), Chapter VI
(executive), and Chapter VII (judicature) of the Constitution. Thus, in keeping with the spirit of
the concept, Section 147(4) of the Constitution provides that a member of the legislature
appointed as a minister of the federation must vacate his seat in the legislature.

However, the strict compartmentalization or division of power is not practicable in

modern government, as the constitutional arrangement allows for the practice of corollary
principle of checks and balances by involving the different arms of government in the discharge
of the functions of the other arms of government. Thus, Abiola Ojo observed that;

“… a complete separation of powers is neither practicable nor desirable for effective

government. What the doctrine can be taken to mean is the prevention of tyranny by the
conferment of too much power on anyone, person or body and the check of one power by
another.” Thus, even when a power is primarily vested in one arm of government another arm of
government can be constitutionally involved in the performance of that major function.

Thus, under Sections 58 and 59 of the Constitution, the President can exercise veto powers over
laws made by the legislature, but such can be overruled by two-thirds majority of the National
Assembly. Thus, in National Assembly v. President of the Federal Republic of Nigeria, the
court held that a Presidential veto can only be overturned by the votes of two-thirds majority of
the whole house and not a quorum and there must be a full reconsideration of the vetoed bill
before being passed into law. Also, in Olisa Agbakoba SAN v. The National Assembly and The
A.G. of the Federation, it was held that without the President‟s assent the National Assembly
cannot validly exercise its powers to amend or alter the Constitution under Section 9 of the
Constitution. Section 32 of the Constitution provides that the President can make regulations on
citizenship but it must be laid before the legislature. The Constitution by virtue of Sections 175
and 211 of the Constitutions vests the power of prerogative of mercy or pardon on the President
and State Governors. These powers clearly amount to a check on the powers of the judiciary to
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impose sentence after a due process of adjudication. This is also the case in the appointment of
judges even though with the approval of the legislature. The provisions of Section 147(2) and
192(2) of the Constitution which empowers the legislature to confirm the President‟s or
Governor‟s appointments of the members of the executive council is a clear imposition of
“checks and balances” as a limitation on the application of the principle of separation of powers.

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Thus, in Inakoju v. Adeleke, the Supreme Court adopted a pragmatic approach in its
interpretation of constitutional provision adopting the principle when it noted that the principle
of separation of powers under the constitution is meant to guarantee good governance and
development and to prevent abuse of power. Section 59 grants the National Assembly the power
of budget approval through the passing of appropriation bills. Sections 80-83 grants the National
Assembly the power of control over public funds. Section 88 confers quasi-judicial powers of
conducting investigations into exercise of executive powers by the Minister or the Legislature.
Section 84 of the Constitution confers the power to determine the remuneration of members of
the executive and judiciary. The investigative power of the legislature is aimed at exposing
arbitrariness, abuse of power, corruption and bad governance on the part of the executive.
Section 143 confers the power of impeachment on the legislature as a result of „gross
misconduct‟. Constitutional procedure must however be followed. In Morebishe v. Lagos State
House of Assembly, the court stated that the purpose of separation of powers under the
constitution is to prevent exercise of arbitrary powers by any of the three arms of government.
However, Oyewo opined that, “in practice the principle of separation of powers brings about
conflicts, deadlocks and threats of divided and fail government when two arms of government
clash intensely over issues that involve the exercise of their powers.” In trying to gain an upper
hand, the legislature tend to resort to the threat of or use of the power of removal or
impeachment of the chief executive until recently when the supreme court in Inakoju v. Adeleke,
where it gave a strict interpretation to the impeachment provisions to overrule the earlier liberal
interpretation of the court of appeal in Balarabe Musa v. Hamza. This was the most
constitutionally compelling power of the legislature over the executive.

Also, Section 6(6)(b) provides for the separation of judicial function and for the courts to
be able to interprete the constitution and laws and adjudication between the arms of government
on the one hand and between the governmental organs and citizens or group of persons on the
other hand. In Governor of Kaduna State v. Kaduna State House of Assembly, the governor of
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Kaduna State sought a declaration that the amendments of the Local Government Edict were
void because they encroached upon his executive powers because they violated Section 4 and 5
of the 1979 Constitution the court declared some of the amendments void and some
unconstitutional and held inter alia that the doctrine of separation of powers is enshrined in the
1979 Constitution. In A.G. Bendel State v. A.G. Fed and Ors, the court held inter alia that by

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virtue of Section 4(8) of the 1979 Constitution, the courts of law in Nigeria have the duty to see
that there is no infraction of the exercise of legislative power, whether substantive or procedural,
as laid down in the constitution. If there is such infraction, the courts have the power to declare
any legislation passed pursuant to it unconstitutional and invalid. In Honourable Godwin
Jideonwo and Ors. v. Gov. of Bendel State and Ors. the High Court held among other things
that the constitution clearly sets out the powers of the three arms of government, and if the
legislature passes any law which is beyond its competence, and which it has no jurisdiction to
pass, whether or not it was passed by all the members of the house, any member of the house of
the public who is affected can challenge it in court, and nothing prevents the court from setting it
aside and declaring it ultra vires the legislature. Also, as was held in Adesanya v. President of
Nigeria and Tony Momoh v. Senate of the National Assembly, nothing prevents a court of
competent jurisdiction from hearing and determining matters that had been discussed in the
house.

In conclusion, the doctrine of separation of powers seeks to prevent anarchy and

arbitrariness by decentralizing powers, however, since a complete decentralization of power is
not possible, the doctrine of checks and balances has been developed as its corollary in keeping
with the spirit of preventing arbitrariness.

6. The right to govern the people is normally conferred on the government by the people
through the constitution. Hence, sovereignty resides with the people because the people have the
ultimate power. Constitutional authority refers to the indigenous nature of a constitution. This
means that the constitution has certain peculiarities that are suitable for that particular people i.e.
the constitution is derived from the people internally. It means that the constitution is drafted or
amended by the people. Niki Tobi stated that; “a constitution is autochthonous if it derives its
authority, validity and form from its own native authority, home grown not from the colonial
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government.”

An autochthonous constitution commands obedience, promotes good governance, promotes

unity and integration. The autochthonous constitution also makes it possible for there to be
popular participation in the constitutional making process. It confers legitimacy on government,

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this means that the people will have a feeling that they are part of the system. As opposed to a
situation where the government in power usurps power thus making the people to disregard the
government in power. This is usually the case in a dictatorial or military government. It must
conform to substantial value i.e. it must meet your expectations. Thus, a constitution that
promotes things like gay or lesbianism in Nigeria will not work as most Nigerians are religious.

There are various theories of Autochthony and they are;

Pure Theory: This theory believes that a truly autochthonous constitution must have input from
all the citizens.

Substantial Proceed Theory: This theory believes that once the people have elected their
representatives to represent their interest in the constitutional making process there has been
substantial compliance with the principle of autochthony.

Theory of Acceptance/Rejection: This theory is in compliance with international law and it

believes that once a constitution is imposed on the people and has been accepted by them without
protests, riots, civil disobedience, crisis and chaos then it will be deemed to have been accepted
by the people.

Whether or not a constitution is autochthonous depends on he way the constitution was

made. The couching of the Nigeria constitution after independence presumes the „autochthony‟
or „homegrown‟ nature of the constitution, the preamble of the 1999 constitution is paraphrased
as follows:

“We the people of the Federal Republic of Nigeria… do hereby make, enact, and give to
ourselves the following constitution.”

Whether or not this is so however, depends on the procedure by which such constitution became
law in relation to Nigeria; despite inputs by representatives chosen on party basis. The 1960
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Constitution was promulgated in the United Kingdom by a foreign colonial power and cannot be
regarded as autochthonous. The same applies to the previous constitution since 1954 and indeed
since 1900. According to Professor Ojo, the authority to make the 1963 constitution was derived
from Section 4 and 5 of the 1960 Constitution which therefore affected its autochthony.

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 The 1979 and 1989 Constitutions enjoyed greater levels of autochthony despite country
wide allegations of electoral malpractices in relation to elections into the constituent assembly,
which considered the nature, and contents of the constitutions, and objections to the appointment
of some delegates by the government in the manner that did not reflect adequate representation
of the different segments of the society. Also, in spite of publication in English and invitation of
comments and inputs by various sections of the society, it can be argued that since the majority
of people in the society are illiterates, there should perhaps have been publication in the
languages of the major ethnic groups so as to encourage greater participation. The final objection
to the autochthony of the 1979 constitution is the fact that it was enacted by the Federal Military
Government which inserted certain provisions, like that of the National Youth Service Corps,
which was made a subject of discussion during the proceedings of the assemblies. In fact, the
decrees setting up the assemblies precluded the discussion of certain sensitive issues.

The 1995 draft constitution also suffered similar objections to the process of its making though
the Assembly was allowed greater freedom in the discussion of issues formerly regarded as too
sensitive. The fact however that the final draft of the assembly was submitted to another
committee for evaluation affected its autochthony as a constitution made by Nigerians through
their representatives. The question is can a dictatorial government enact or promulgate an
autochthonous or democratic document? Should such a document not be submitted to the people
for ratification at a referendum or, at least, to their elected representatives at the constituent or
national assembly for enactment? Mowoe opines that: “there is no doubt that as far as
constitutional law is concerned, military rule is, and continues to be an aberration as a result of
the manner in which they come to and maintain themselves in power. As a result, they cannot
validly enact a constitutional document. Only the people‟s representatives or a government
having the mandate of the people to rule can enact such a document.”

Osipitan opines that the since members of the armed forces are themselves Nigerians, the
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constitution is autochthonous.

There has been a lot of dissatisfaction with the procedure for the making of the 1999
Constitution, which is not seen as a constitution made by the people of Nigeria for themselves, as
well as some of its provisions. Thus, the 1999 Constitution cannot be said to be autochthonous.
Consequently, a Presidential Committee of the review of the 1999 Constitution was set up under

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the umbrella of the Sovereign National Conference although the recommendations are yet to be
enforced.

In conclusion, for there to be a constitution in Nigeria which can be said to be truly

autochthonous, there has to be a conference in which all the true, not self-styled representatives
of the nationalists making up Nigeria, chosen at a free and fair referendum, will, after
consultation with the various constituencies, sit to chart a new, more satisfying constitutional
document for Nigeria, taking into full consideration, not their personal views, but that of the
majority of the members of their nationalities. For such a conference to succeed there should be
need to compromise on some of the issues threatening the continuance of the federation.

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