COURSE TITLE: NIGERIAN LEGAL SYSTEM 1

COURSE LECTURER: Vera B. Monehin

TOPIC: Sources of Nigerian Law.

SOURCES OF NIGERIAN LAW

The word ‘Source’ means “the place from which something comes from or is gotten”. Sources of
Nigerian law simply means “the legal source of law which is accepted, process by which laws are
validated. It accounts for the recognized process of law making whereby ordinary rules are transformed
into binding laws. The legal sources literally refer to where, how and by what authority a particular rule
is made of and how it becomes legally effective to regulate human conduct.
Sources of law constitute ground norms, precedents and binding authorities that determine the decision
or judgment of the court
The principal legal sources of Nigerian law are:
1) The Constitution
2) Nigerian Legislation/ Statutes
3) Case Law/ Judicial Precedents
4) Received English Law
5) Customary Law and Islamic Law.

1) CONSTITUTION
 The term ‘Constitution’ may be defined as ‘the systems of laws, customs and conventions which
define the composition and power of organs of the state, and regulate the relations of the various
state organs to one another and to the private citizen’. It may also refer to the document
containing the substance of the law
 The Nigerian constitution is written and it is also supreme because it has binding force on all
authorities and persons in Nigeria. The Federal Republic of Nigeria is governed in accordance
with the provision of the Constitution and if any other law is inconsistent with the provisions of
the Constitution, the constitution shall prevail and that other law shall be void. See 1(3) of the
CFRN as amended.
 The Constitution of the Federal Republic of Nigeria is superior to all other laws and it regulates
the Judicial, executive and legislative organs. In INEC v Musa (2003) 10 W.R.N. 1, the Supreme
Court held that all powers, legislative, executive and judicial; must ultimately be traced to the
Constitution.
 The Constitution also contains bundle of enforceable rights and duties as well as rules under the
law.
 The Constitution is therefore both a machinery for the government and it gives right and imposes
obligations on the people it is meant for. See s 33 – 43 of the CFRN

2) NIGERIAN LEGISLATION/ STATUES

 A legislation is a written law that has been enacted by the legislative arm of government.
This may either be the National Assembly comprising of the Senate and House of
 
Representatives or the State House of Assembly.
The Legislation is the product of a deliberate and formal expression of rules of conduct
a
made by the relevant law-making authority.
 Such relevant authority must be recognized for that purpose by the political and legal
machinery of that state otherwise, the declaration lacks legality.
 A Legislation is the main source of law making and law reform e.g., amendment, repeal.
etc. Laws are made for the peace, order and good government of Nigeria. The Legislation
has a tremendous effect on all other sources of law because it can alter their contents.
 Legislation is the most adequate means of meeting the diverse needs of a complex and
dynamic society and It is a vital instrument of nation building.
 By virtue of legislation, successive governments have affected more positively, the
political, economic and social aspects of national life.
 Provides for anticipatory remedies and the making of contingency provisions to cope with


future developments e.g., cloning, gay marriage
Also, it involves a wide participation which is achieved through the process of
d
representative democracy in the legislative house.
 They are also enacted with relative ease.
 Law making and Law reform is a continuous exercise. Law reforms society and society
reforms Law. See Brown v Board of Education [1954] 347 US 483

Legislation may be primary or subsidiary.

 Primary Legislation: Enacted laws that emanate from the major legislative arm of
government.
 Subsidiary/delegated legislation is legislation made by a person or body other than the
sovereign parliament by virtue of powers conferred by legislation. See Barclays Bank of
Nigeria v Ashiru [1978] 6-7 S.C. 99
 Power is given to persons or bodies in the executive or judicial arms of government to make laws
r
which helps in the effectuation of the intentions of the legislature. e.g s 46(3)
 Trade Bank Plc v Lagos Island Local Government Council [2003] 3 NWLR (pt 806) 11 at 27- A
subsidiary legislation when validly made, has effect as the principal or enabling Act.
 Subsidiary legislation is however inferior to and may be repealed by a primary legislation.

Arguments for Delegated Legislation

 It reduces parliamentary workload
 It enables experts to legislate on technical matters
 It saves the time of parliament
 It brings Government nearer to the people

Arguments Against Delegated Legislation

 It is contrary to the doctrine of separation of powers
 It reduces the supremacy of the parliament
  It is prone to abuse
 Control of delegated legislation is inadequate (s. 32)
 Inadequate publicity of delegated legislation

Delegated Legislation may take the form of regulations, rules, orders or Bye–laws. Examples
r
include;
 Regulations issued by administrative agents of the executive arm of govt.
 Rules of procedure made by judicial authorities. See S. 46(3) 1999 Const. which provides that
the CJN may make rules with respect to the practice and procedure of a High Court.
 Legislation emanating from professional bodies e.g., Medical and Dental practitioners Act

Limitations on subsidiary legislation are;

Ultra vires and Delegatus non potest delegare

 Ultra Vires doctrine was originally applied to curtail the exercise of excess legal
authority by statutory corporations. It means beyond your powers. A subsidiary legislation
must keep within the bounds of the authority conferred by the enabling statute and any
abuse of that power will render the legislation void.
 Delegatus non potest delegare means a delegate cannot delegate its functions, unless he is
otherwise authorized. See A.G Bendel State v A.G. Federation and 22 others. [1982] 3
NCLR 1 SC.

Nigerian statutes consist of the following;

a. Acts
b. Laws
c. Decrees
d. Edicts
e. Bye Laws

 Acts are legislation enacted by the Federal Legislature, that is, the National Assembly
which consists of the Senate and House of Representatives. See Section 47, 1999
Constitution.
 Laws are legislation or enactments made by the state legislatures or having effect as if
made by them. Laws are to the state government what Acts are to the Federal Govt. See
S. 4(6) CFRN
 A Decree is a legislation promulgated by the Federal Military Government of Nigeria. In a
military dispensation, decrees in the country are superior legislation and take precedence over and
above all other existing statutes or legislation including the Constitution. See Okafor v Okonkwo
[2002] 17 NWLR (pt 796] 262 at 291.
 Edicts is a law enacted by the military government of a state is called an Edict.
  Bye laws: These are legislation passed by local government councils. Local government councils
across the country have various bye laws with respect to matters such as collection of rates,
establishment of motor parks, registration of births, deaths and marriages, shops, sale of liquor
etc. See Akingbade v Lagos Town Council [1955] 21 NLR 90.
LEGISLATIVE PROCESS
 The powers of the National Assembly cover all matters in the
exclusive legislative list set out in part 1 of the second schedule
to the Constitution
 It also covers matters in the concurrent legislative list. (Part II)
 Similarly, the House of Assembly of a state has powers to make laws with respect to
matters in the concurrent legislative list and residual matters.
 If any state law on a matter in the concurrent legislative list is inconsistent with any
law validly made by the National Assembly on the same matter, the law of the
National Assembly prevails and the state law to the extent of such inconsistency
becomes void.
ORDINARY BILLS:
 Acts enacted by National Assembly are initiated by way of bills. See S. 58 and S.100,
1999 Const.
 A bill may either be a private bill or public bill. Public bills pertain to matters that affect the
general public or classes of citizens, while private bills affect just certain individuals and
organizations. The purpose of a private bill is to confer special powers or benefits (in excess of or
in conflict with the general law) upon one or more person(s) or group of persons (including
corporate entities) or to exempt them from the application of a statute. It may not be introduced
by a Minister, and must be founded on a petition signed by the person(s) promoting it. Thus, the
distinction between a public bill and a private bill is primarily a function of the purpose of the
bill.
 It may be introduced by the chairman of the appropriate committee or an ordinary
member of the House.
 A bill may originate in either the Senate or House of Representatives and shall not
become Law unless it has been passed. See S 58(1) and (2)

Before a Bill becomes law, it must go through the following process in either chamber of the
National Assembly:

1. Presentation and first reading;

2. Second reading;
3. Committee stage;
4. Third Reading and Passage; and finally
5. Assent by the President.

Presentation and First Reading

  As a first step, after the Clerk receives a copy of the Bill, he/she must give notice to the members
of the relevant chamber.
 In the case of a Public Bill, the Clerk must publish a copy of the Bill in the Official Gazette and
send a copy to every member of the relevant chamber,
 while in the case of a Private Bill, the member sponsoring the Bill must move a motion to seek
the permission of the Senate President (or the Speaker of the House as the case may be) to
present the Bill and publish same in two (2) successive issues of the Official Gazette.
 After its publication, a copy of the first issue must be sent to each member of the relevant
chamber.
 At the first reading stage, the Clerk reads the short title (Short Title refers to the formal name of a
legislation i.e National Information Technology Development Agency Act, 2007. This is in
contrast to the Long Title which usually describes the aims of the legislation) of the Bill(s),
provides a brief statement on what the Bill aims to achieve, and puts it before the Senate
President or the Speaker of the House of Representatives depending on the chamber Bill is
presented in.
 The purpose of the first reading stage is simply to inform legislators of the Bill(s) introduced.
There are no discussions or debates at this stage.

Second Reading

 At the second reading stage, the merits of the Bill are debated and discussed.
 The process begins when the member sponsoring the Bill moves a motion for the Bill to be read
for a second time.
 As part of this motion, the member would highlight the objective of the Bill, its general principle,
and benefits in stating the case for why the Bill should be passed into law.
 To proceed to second reading, the said motion must be supported [seconded] by another
legislator in the relevant chamber.
 Where the motion is not seconded, it is considered rejected and will not proceed to second
reading.
 Once the motion has been moved and supported, the Bill is debated by members of the chamber
and thereafter put to a vote on whether it should proceed to the Committee Stage.
 If a simple majority of members in the relevant chamber support the Bill, it proceeds to the
Committee Stage for further consideration, if not, the Bill cannot be debated again until same is
re-introduced later.

Committee Stage

 After second reading the Bill is referred to the relevant Standing Committee(s) of the relevant
chamber.
 At the Committee Stage, the Committee works to add further value to the Bill and may hold
public hearings to engage critical stakeholders and the public.
 The role of the Committee(s) is to make suggestions, amendments, and recommendations to the
Bill (if any) and report back to the relevant chamber for further consideration.
 The Chairperson of the selected Committee would report on the progress of the Bill after which
the chamber, through the Committee of the Whole, would deliberate further on Bill.
 At the end of this stage, a motion may be passed for the Bill to be read for a third time.
Third Reading and Passage

 At the third reading stage, the Bill is read again, and members vote to pass same. At this point,
the bill cannot be amended again.
 A clean copy of the Bill containing all the amendments will be produced and signed by the Clerk
and either the Speaker of the House of Representatives or the Senate President after which the
endorsed Bill is forwarded to the Clerk of the other chamber with a message requesting its
concurrence, that is approval by the other chamber.
 The receiving chamber may accept the proposed legislation as received, at which point it will
communicate its concurrence without amendments.
 However, where it does not agree with the provisions of the Bill from the originating chamber or
seeks to make amendments to same, a Harmonisation/Conference Committee must be constituted
separately, by the Senate President and the Speaker to reconcile the differences on the Bill.
 The harmonisation committee is typically made up of member of both chambers with an
obligation to propose a united position that can be adopted by both chambers.

Assent or Veto

 Where both chambers adopt the report of the Harmonisation Committee, the Clerk of the
originating chamber will produce a clean copy of the harmonised Bill for transmission to the
President for assent - a bill does not become law until it is signed by the President.
 At the assent stage, the President must either approve or veto/reject the bill within thirty (30)
days of receiving the bill.
 Should the President veto or fail to communicate his assent within the specified period, the
National Assembly may override this veto by a two-thirds majority of both chambers voting to
pass the bill into law. (Section 58(5) of the Constitution.)
 At this point, the bill becomes law without the President's assent.
 Since the Fourth Republic of Nigeria, this has only successfully been done once - sometime in
June 2000, the National Assembly successfully overturned President Olusegun Obasanjo's veto
on the Niger Delta Development Commission Establishment Bill.

Notwithstanding the above, it must be noted that this procedure does not apply to all Bills.

 When proposing constitutional amendments, the amendment Bill must be supported by a two-
thirds majority of the members of each chamber of the National Assembly before it can be read
for a third time.
 Once the Federal Legislature approves of the Bill, same must also be approved by a two-thirds
majority of the 36 State Houses of Assembly11.
 Another example of where the above procedure would not apply is where there are urgent matters
of state which require immediate attention such as passing the National Budget.
 In such instances, the National Assembly has the power to suspend its own procedure to properly
attend to such matters.12

3) CASE LAW/ JUDICIAL PRECEDENTS

  In ordinary sense, a precedent means an earlier happening, decision etc. taken as an example or
rule for what comes later.
 Case law/Judicial precedent refers to that body of principles and rules of Law which, over the
years, have been pronounced upon by the courts as governing specific legal situations.
 It is used as a guide for future decisions or as a device to cut down on the time and effort that
would have been expended in thinking out solutions to problems.
Precedent also arises from man’s desire to employ the wisdom and experience of the past as a
guide in the handling of new problems.
 Precedents provide for certainty and uniformity in application.
 Organizations and companies also employ precedents as a guide for future conduct as well as the
traditional system of adjudication.
 The case under consideration and the one being urged as authority should agree on legally
material facts even if not on points of details. See Abu v Adegbo [2001] 41 W.R.N. 1
 The value of the precedent is not in any way diminished on the ground of age.
 In Okpala v Okpu [2003] 5 NWLR (pt 812) 183 at 223, counsel for the appellants had described
the decision in Taiwo v Akinwunmi [1975] 4 SC 143 as archaic on the ground that it was decided
about 30 yrs ago and urged the court not to follow it. The court disagreed stating that the older a
case, the mature it is and is binding on all courts until it is overruled.

Ratio Decidendi
 It is not everything a judge or court says in a judgment that binds it as precedent.
 The ratio decidendi represent the reasoning or ground upon which a case is decided after
considering the facts of the case.
 The material facts and the decision of the earlier court or reason for deciding, constitute the ratio
decidendi. See National Electric Power Authority v Onah [1997] 1 N.W.L.R 68
 A case may have more than one ratio decidendi i.e. it may establish more than one legal principle

Obiter Dicta
 Obiter is a Latin word meaning ‘by the way’ or ‘in passing’.
 In the course of reaching a decision, a court may make pronouncements not directly relevant to
the issue under consideration. These passing statements are known as Obiter Dicta.
 They are the explanations, analysis and observations made by a judge in a judgement or decision.
 Unlike Ratio Decidendi, Obita Dicta has no binding effect for the purpose of the doctrine of
judicial precedent. See ECU-Line N.V. V Adelekan [2001] 1 NWLR (pt 721) 261 at 282.
 However, an obiter is a persuasive opinion and is usually respected according to the reputation of
the judge or the hierarchy of the court that stated the opinion or analysis.
 The simplest method to determine what constitutes an obiter in a case is to ask the question; did
the court’s opinion answer a question raised by the parties before the court? If the answer is in the
affirmative, then the court’s opinion is a ratio, if it is in the negative, it is an obiter and not
binding.

Decisions reached Per Incuriam

  A decision could be arrived at by the court in ignorance or forgetfulness of an authority, which is
binding on that court. See Huddersfield Police Authority v Watson [1974] 2 ALL E.R. 193
 Per Incuriam decisions occur where the judge that gave the decision did not advert his mind to a
relevant rule of Law or a binding precedent that could have influenced his opinion in the matter.
 Such decisions is still binding on subordinate courts, although the court from which the case
emanated is free to depart from it on that ground. See Attorney General of Ogun State v Egenti
[1986] 3 NWLR. 256
 The court of appeal in the cases of Mba v Ibe [1999] 4 NWLR (pt 597) 97 and Enugwu v Okefi
[2000] 3 NWLR (pt 650) 620 recognized that its decisions were reached per Incuriam and thus
overruled itself in those decisions.
 Thus, a court can depart from its earlier decision reached per incuriam but a lower court has no
competence to do same.
 However, the Court of Appeal in Warner and Warner International Associates (Nig) Ltd v
Federal Housing Authority[Appeal No CA/L/182/84] saw nothing wrong in an inferior court
highlighting and making appropriate observations on aspects of a decision of a superior court,
though compelled by circumstance to follow it.
 This would help draw the attention of the superior court to the decision for proper review.

Types of Precedent
 Precedents may be classified as original, binding and persuasive.
 An original precedent is one that establishes a new rule of Law and usually occurs in cases of
first impression where no existing precedent is to be found.
 Persuasive or Binding precedent: It is persuasive when it is within the powers of the lower
court in which it is being urged, to choose to follow or depart from it. Decisions of lower courts,
courts of co-ordinate jurisdiction and foreign courts are treated as merely persuasive.
 On the other hand, it is binding when the court in which it is being advanced is bound to follow
it.
Operation of the Doctrine
 The bindingness of a decision, case, judgement or precedent is according to the hierarchy of
courts that decided it.
 The general rule of precedence is that the decisions of the higher courts bind the lower courts.
 A lower court is free to express its own views on the issue of law concerned but it must as a
necessity give its decision in accordance with the binding decision of the superior court.
 When a lower court ignores a binding precedent, it draws harsh judicial admonition. In Mobil Oil
(Nig). Plc v IAL 36 Inc. [2000] 6 NWLR (pt 659) 146, the Supreme Court frowned at the failure
of both trial judge and Court of Appeal to follow precedents set by it.
 The effect of a lower court refusing to follow the decision of a higher court is to risk having its
decisions set aside by an appellate court.
 The Supreme Court is the highest court in Nigeria. It hears appeals from the Court of Appeal
and exercises original jurisdiction in disputes between the Federation and the State.
 The Supreme Court is not bound by the decision of any court. Eliochin (Nig) ltd v Mbadiwe
[1986] 1 N.W.L.R. but other courts are bound by its decisions.
 As for its own past decisions, the court is not bound. It may in appropriate cases depart from it in
the interest of justice such as;
1) Where the decision was given per incuriam. In Adisa v Oyinwola [2000] 10 (pt 674) 116
at 191, the Supreme Court overruled Oyeniran v Egbetola [1975] 5 NWLR (pt 504) 122
on the grounds that the decision was given per incuriam.
2) Where it was made in error See Johnson v Lawanson [1971] 1 N.M.L.R 380
3) Where it is capable of perpetrating injustice. The court in Bucknor-Maclean v Inlaks Ltd
[1980] 8-11 S.C. 1 departed from its earlier decisions in Shell B.P. V Jammal
Engineering (Nig) Ltd [1974] 1 AA NLR 542 and Owunmi v P.Z. (Nig) Ltd. [1974] 1
ALL NLR (pt 2) 107 because the views taken in those cases were capable of leading to
considerable injustice.
4) Where it would curtail Constitutional rights
5) Where it is in the interest of justice and proper development of the Law to do
 A party wishing to have the Supreme Court overrule its previous decision must state reasons why
the court should do so. See Atologbe v Awuni [1997] 9 NWLR (pt 522) 536 at 566

 The Court of Appeal is an appellate court entertaining appeals from the Customary and Sharia
Courts of Appeal, the Federal High Court and various state high Courts.
 The Court of Appeal, is bound by its previous decisions.
However, the court may depart from its previous decisions if;
 It was given per Incuriam. See Adekanye v Comptroller of Prisons [2000] 12 NWLR (pt 682)
563
 It has to choose between two or more of its own previous decisions.
 It is incompatible with a decision of the supreme court. See Sea Trucks (Nig) Ltd v
Payne[1999] 6 NWLR (pt 607) 514 at 541
 Concerning the decisions of the Supreme Court, the Court of Appeal is clearly bound by them
and it does not matter if the decision of the higher court was reached per Incuriam or is
unjustifiable. See Emesin v Nwachikwu[1999] 10 NWLR (pt 621) 167 at 171-172
 When the court of Appeal is confronted with conflicting decisions of the supreme court on the
same matter, the court will follow the most recent of the conflicting decision and regard the
others as having being overruled. See Yusuf v Egbe [1987] 2 N.W.L.R 341 at 335.

 The Federal and State High Courts are strictly bound by the decisions of the Court of Appeal
and the Supreme Court. See Attorney General of Ogun State v Egenti (Supra)

 Concerning their own past decisions, it is not expected that a high court would freely depart from
them unless given per incuriam, or considered wrong in law or against the interest of justice.
Inspector General of Police v Ojo [1958] W.R.N.L.R.
 A high court judge is not bound by the decision of another high court being a court of co-ordinate
jurisdiction but such decisions may be of persuasive authority. Emodi v Commissioner of lands
[1972] 2 E.C.S.L.R 47 at 49

 Magistrates Courts are inferior courts handling a vast number of criminal and civil cases.
 Their decisions do not bind any other court.
 They are not bound by their own previous decisions
  Customary and Sharia courts pay little regard to the technical rules of Law in their
determination of dispute.
 This is because many of these courts are presided over by laymen who are not sufficiently
knowledgeable in the general law to be able to appraise the decisions of superior courts.
 The doctrine of Judicial precedent does not apply to these courts.

Foreign Decisions
 Nigerian courts can rely on English authorities whilst construing provisions of Nigerian statutes
that are the same as the English equivalents. Iwuchukwu v Nwizu [1994] 7. W.L.R. 379
 However, the supreme court has emphasized the need to prefer Nigerian decisions, where
available, to foreign ones.
 According to the court, foreign authorities cannot supplant Nigerian case Law which is rightly
decided on any issue. Araka v Egbue [2003] 33 W.R.N. 1
Where local decisions have adopted a particular opinion of the foreign court, it is that local
decision and not the foreign opinion that should be taken as the binding authority.
 Foreign cases are only persuasive and are by no means binding on Nigerian courts. Thus, the
court in Alli v Okulaja [1970] 2 ALL N.L.R. 35 at 44 found no reason to be bound by the English
decision in Edmeades v Thames Board Mills Ltd [1969] 1 Lloyd’s Rep. 221

Distinguishing
 A lower court may find a way out of the clutches of precedent by distinguishing the case under
consideration from the one being urged as a binding authority.
 This could be either on the ground that the facts of the earlier case are different from the facts of
the case in hand, or that the decision is too wide, considering the issues before that court.
 In Board of Customs and Excise v Bolarinwa [1968] M.N.L.R. 350 at 352, Thompson J stated
that it is not sufficient to say the facts are different. The ratio decidendi of the case; the facts
proved in that decision; and in what manner the high court decision is different from the present
one must be stated.

4) RECEIVED ENGLISH LAW

 When heard of “Received English law”, what erroneously comes to mind is the law converted in
English. But the truth is that received English law has nothing to do with the language
composition.
 In a nutshell, “Received English law” refers to the rules of law and legal principles that have their
roots or origin in England but were adopted into Nigerian legal system to form part of Nigerian
laws.
 The influence of colonialism resulted to adoption of received English law into Nigerian legal
system upon Independence in 1960.
 Components of “Received English law” include the common law, the doctrines of equity,
statutes of general application in force in England on January 1, 1900, statutes and subsidiary
 legislation on specified matters and English law (statutes) made before October 1, 1960 and
extending to Nigeria which are not yet repealed.
 Laws made by the local colonial legislature are treated as part of Nigerian legislation.
 The failure to review most of these laws especially in the field of criminal law has occasioned the
existence of what may be described as impracticable laws or legal provisions which are honoured
more in breach than in observance.
 Despite the influence of English Law, the Nigerian legal system is very complex because of legal
pluralism.

5) NIGERIAN CUSTOMARY LAW/ ISLAMIC LAW

 Nigerian Customary law refers to a system of law that evolved from the tradition, culture or
customs of the indigenous communities of Nigeria used to regulate the conduct of the people.
Customary law is the body of legal rules at the grassroots.
 According to Black Law Dictionary (2009), Customary law refers to law consisting of customs
that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that
are so vital and intrinsic a part of social and economic system that they are treated as if they were
laws.
 In other words, customary law is characterized with legal obligations or requirement that
emanated from people’s norms, traditions and custom. Customary law is a system of law that
reflects the social, cultural, economic, political values and belief system of the people. In Nigeria,
there are two main categories of customary law. This includes,
 Ethnic Customary Law
 Islamic/Sharia Customary Law
 Ethnic customary law refers to various indigenous laws of ethnic groups that make up the
country. Nigeria is a heterogeneous country that have various ethnic nationalities with variant
customary laws and traditions that guide the conduct of the natives and their society.
 Islamic law, Moslem law or Sharia law, distinct form ethnic customary law, is written. This
system of law is based on the Holy Koran and the teachings of Prophet Muhammad. Its principles
are religiously inclined and are clearly defined and articulated. This system of law is
predominately in use in the northern parts of Nigeria and some Southern regions where Moslems
are dominated.