NATIONAL OPEN UNIVERSITY OF NIGERIA

COURSE CODE :POL 211

COURSE TITLE:
NIGERIAN LEGAL SYSTEM

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 COURSE GUIDE

COURSE CODE: POL 211

COURSE TITLE: NIGERIAN LEGAL SYSTEM

COURSE DEVELOPER: Dr Justice O. Igbokwe

Dept. of Government and Public Policy
National Defense College, Abuja.

COURSE EDITOR: Ms. Bose Lawal

Faculty of Law
Lagos State University
Ojo, Lagos State

COURSE COORDINATOR: Mrs. Ifeyinwa M. Ogbonna-Nwaogu

School of Arts and Social Sciences
National Open University of Nigeria
Lagos

PROGRAMME LEADER: Prof. Abdul R. Yesufu

School of Arts & Social Sciences
National Open University of Nigeria
Lagos

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TABLE OF CONTENTS PAGES

Introduction………………………………………………………… 1
Course Aims…………………………………………………………..
Course Objectives……………………………………………………. 1-2
Working Through this Course ……………………………………… .2
Course Materials..……………….…………………………………. 3
Study Units…..……………………………………………………….. 3-4
Textbooksand References…………………………………………… 5
Assessment File………………………………………. ……………… .5
Tutor Marked Assignments TMAs…………………………………….. 5
Final Examination and Grading……………………….……………….. 6
Course Marking Scheme………………………………………………... 6
Presentation Schedule……………………………………………………6
Course Overview/Presentation Schedule………………..………………7-9
How to get the most from this Course…………….……………………9-11
Tutors and Tutorials…………………………………………………11-12
Summary………………………………………………………………12

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 POL 211 COURSE GUIDE

Introduction
Welcome to POL 211: Nigerian Legal System. This course is a three-credit unit course
for undergraduate students in Political Science. The materials have been developed with
the Nigerian context in view. This course guide gives you an overview of the course. It
also provides you with information on the organization and requirements of the course.

Course Aims
The aims of this course are to impart fundamental knowledge of general principles of
Nigerian Legal System in resolving disputes as and when necessary. To make an
attempt to create national legal norms that regulates and stipulates rights and duties of
the citizenry, etc. These broad aims will be achieved by:

i. Introducing you to Nigerian Legal System, and the basic principles and sources of
Nigerian Legal System.
ii. Demonstrating how effective these principles are.
iii. Informing you about Nigerian legislation as well as the reasoning behind legislation.

Course Objectives
To achieve the aims set out above, POL 211 has overall objectives. (In addition, each
unit also has specific objectives. The unit objectives are at the beginning of each unit. I
advise that you read them before you start working through the unit. You may want to
refer to them during your study of the unit to check your progress).
Here are the wider objectives for the course as a whole. By meeting the objectives, you
count yourself as having met the aims of the course. On successful completion of the
course, you should be able to:

a. Know the meaning of law

b. The need for law in a society
c. The difference between law
d. Custom and law
e. The meaning of Jurisprudence
f. Legal system in Nigeria
g. The legislative process in Nigeria
h. The meaning of Constitution
i. Kinds of Constitutions
j. Hierarchy of courts in Nigeria
k. The role of judiciary in the emerging democracy
l. The Rule of law and political governance in Nigeria.

Working Through This Course

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To complete the course, you are required to read the study units and other related
materials. You will also undertake practical exercises for which you need a pen, a note
book, and other materials that will be listed in this guide. The exercises are to aid you in
understanding the concepts being presented. At the end of each unit, you will be
required to submit written assignments for assessment purposes. At the end of the
course, you will write a final examination.

Course Materials
The major materials you will need for this course are:
i. Study unit
ii. Assignments file
iii. Relevant textbooks including the ones listed under each unit

Study Units
There are 33 units (of 7 modules) in this course.
These are listed below:

Module 1
Unit 1; The Concept and Evolution of Law
Unit 2: Law and Morality
Unit 3: Types of Law
Unit 4: Theories of Law
Unit 5: Classification of Law

Module 2
Unit 1; Meaning of Law
Unit 2: The Nigerian Legal System
Unit 3: Sources of Nigerian Legal System

Module 3
Unit 1; Nigerian Legislation
Unit 2: The Reasoning behind Legislation
Unit 3: Legislative Process
Unit 4: The Rules of Law and Political Governance
Unit 5: Tools of Social Control via Law

Module 4
Unit 1; The Hierarchy of Courts in Nigeria
Unit 2: The judiciary and Democracy in Nigeria
Unit 3: Judicial Settlements of Disputes
Unit 4: Constitution and Constitutional Democracy
Unit 5: Crime Control in Nigeria

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Module 5
Unit 1; An Outline of Civil Procedure in Nigeria
Unit 2: Civil Procedure in the Magistrate Court
Unit 3: Commencement of Civil Proceeding in the High Court.
Unit 4: Interrogations and Application
Unit 5: Enforcement of Judgments

Module 6
Unit 1; An Outline of Criminal Procedure in Nigeria
Unit 2: Classification of Offences
Unit 3: Criminal Procedure in the Magistrate Court
Unit 4: Preliminary Inquiry
Unit 5: Summary Trial

Module 7
Unit 1; Legal Aid and Advices in Nigeria
Unit 2: Legal Aid Council
Unit 3: The Necessity of Legal Aid
Unit 4: How to improve the Service of the Legal Aid Council in Nigeria

Textbooks and References

Certain books have been recommended in this course. You may wish to purchase them
for further reading.

Assessment File
An assessment file and a marking scheme will be made available to you. On the
assessment file, you find details of the works you must submit to your tutor for
marking. There are two aspects of the assessment of this course, the tutor marked and
the written examination. The marks you obtain in these two areas will make up your
final marks. The assignment must be submitted to your tutor deadline stated in the
presentation schedule and the assignment file. The work you submit to your tutor for
assessment will count for 30% of your total score.

Tutor Marked Assignments (TMAs)

You will have to submit a specified number of the TMAs. Every unit in this course has
a tutor marked assignment. You will be assessed on four of them but the best three
performances from the TMAs will be used for your 30% grading. When you have
completed each assignment, send it together with a Tutor Marked assignment form, to
your tutor. Make sure each assignment reaches your tutor on or before the deadline for
submission. If for any reason, you cannot complete your work on time, contact your
tutor for a discussion on the possibility of an extension. Extensions will not be granted
after the due date unless under exceptional circumstances.

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Final Examination and Grading
The final examination will be a test of three hours. All areas of the course will be
examined. Find time to read the unit all over before your examination. The final
examination will attract 70% of the total course grade. The examination will consist of
questions, which reflect the kind of self assessment exercises and tutor marked
assignment you have previously encountered and all aspects of the course will be
assessed. You should use the time between completing the last unit, and taking the
examination to revise the entire course.

Course Marking Scheme

The following table lays out how the actual course mark allocation is broken down.

Assessment Marks
Assignments (Best three assignments out of four marked) 30%
Final Examination 70%
Total 100%

Presentation Schedule
The dates for submission of all assignments will be communicated to you. You will also
be told the date of completing the study units and dates for examinations.

Course Overview and Presentation Schedule

Units Title of work Weeks Activity
Assignment
Course
Guide
Module 1
The Concept and Evolution of lawWeek 1 Assignment 1
Law and Morality Week 1 Assignment 2
Types of Law Week 2 Assignment 3
Theories of Law Week 2 Assignment 4
Classification of Law Week 2 Assignment 5

Module 2
Meaning of Law Week 3 Assignment 1
The Nigerian Legal System Week 4 Assignment 2
Sources of Nigerian Legal SystemWeek 4 Assignment 3

Module 3
Nigerian Legislation Week 5 Assignment 1
The Reasoning behind LegislationWeek 6 Assignment 2
Legislative Process Week 7 Assignment 3
The Rules of Law and Political Week 8 Assignment 4

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 Governance
Tools of Social Control via Law Week 9 Assignment 5
Module 4
The Hierarchy of Courts in Nigeria
Week 10 Assignment 1
The judiciary and Democracy Week in 10 Assignment 2
Nigeria
Judicial Settlements of Disputes Week 11 Assignment 3
Constitution and Constitutional Week 11 Assignment 4
Democracy
Crime Control in Nigeria Week 11 Assignment 5

Module5
An Outline of Civil Procedure Week in 12 Assignment 1
Nigeria
Civil Procedure in the Magistrate Week 12 Assignment 2
Court
Commencement of Court Proceeding Week 12 Assignment 3
in the High Court.
Interrogations and better application
Week 13 Assignment 4
Enforcement of Judgments Week 13 Assignment 5

Module6
An Outline of Criminal ProcedureWeek
in 14 Assignment 1
Nigeria
Classification of Offences Week 14 Assignment 2
Criminal Procedure in the Magistrate
Week 14 Assignment 3
Court
Preliminary Inquiry Week 15 Assignment 4
Summary Trial Week 15 Assignment 5

Module 7
Legal Aid and Advices in Nigeria Week 15 Assignment 1
Legal Aid Council Week 16 Assignment 2
the Necessity of Legal Aid Week 16 Assignment 3
How to improve the Service of Week
the 16 Assignment 4
Legal Aid Council in Nigeria

Revision
Examination
Total 17
How To Get The Most From This Course

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 In distance learning, the study units replace the University lecture. This is one of the
great advantages of distance learning; you can read and work through specially
designed study materials at your own pace, and at a time and place that suits you best.
Think of it as reading the lecture instead of listening to the lecturer. In the same way a
lecturer might give you some reading to do, the study units tell you where to read, and
which are your text materials or set books. You are provided exercises to do at
appropriate points, just as a lecturer might give you an in-class exercise. Each of the
study units follows a common format. The first item is an introduction to the subject
matter of the unit, and how a particular unit is integrated with the other units and the
course as a whole. Next to this is a set of learning objectives. These objectives let you
know what you should be able to do by the time you have complete the unit. These
learning objectives are meant to guide your study. The moment a unit is finished, you
must go back and check whether you have achieved the objectives. If this is made a
habit, then you will significantly improve your chances of passing the course. The main
body of the unit guides you through the required reading from other sources. This will
usually be either from your set books or from a reading section. The following are
practical strategy for working through the course. If you run into any trouble, telephone
your tutor. Remember that your tutor’s job is to help you. When you need assistance, do
not hesitate to call and ask your tutor to provide it.

1. Read this course guide thoroughly, it is your first assignment.

2. Organize a study schedule. Design a “Course Overview” to guide you through the
Course. Note the time you are expected to spend on each unit and how the assignments
relate to the units. Whatever method you choose to use, you should decide on and write
in your own dates and schedule of work for each unit.
3. Once you have created your own study schedule, do everything to stay faithful to it.
The major reason why students fail is that they get behind with their course work. If you
get into difficulties with your schedule, please, let your tutor know before it is too late
to help.
1. Turn to Unit 1, and read the introduction and the objectives for the unit.
2. Assemble the study materials. You will need your set books and the unit you are
studying at any point in time. As you work through the unit, you will know what
sources to consult for further information.
3. Keep in touch with your study centre. Up-to-date course information will be
continuously available there.
4. Well before the relevant due dates (about 4 weeks before due dates), keep in mind that
you will learn a lot by doing the assignment carefully. They have been designed to help
you meet the objectives of the course and, therefore, will help you pass the examination.
Submit all assignments not later than the due date.
5. Review the objectives for each study unit to confirm that you have achieved them. If
you feel unsure about any of the objectives, review the study materials or consult your
tutor.

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6. When you are confident that you have achieved a unit’s objectives, you can start on the
next unit. Proceed unit by unit through the course and try to pace your study so that you
keep yourself on schedule.
7. When you have submitted an assignment to your tutor for marking, do not wait for its
return before starting on the next unit. Keep to your schedule. When the assignment is
returned, pay particular attention to your tutor’s comments, both on the tutor marked
assignment form and also the written comments on the ordinary assignments.
8. After completing the last unit, review the course and prepare yourself for the final
examination. Check that you have achieved the unit objectives (listed at the beginning
of each unit) and the course objectives (listed in the course guide).

Tutors and Tutorials

Information relating to the tutorials will be provided at the appropriate time. Your tutor
will mark and comment on your assignments, keep a close watch on your progress and
on any difficulties you might encounter and provide assistance to you during the course.
You must take your tutor marked assignments to the study centre well before the due
date at least two working days are required). They will be marked by your tutor and
returned to you as soon as possible.

Do not hesitate to contact your tutor if you need help. Contact your tutor if:
• You do not understand any part of the study units or the assigned readings
• You have difficulty with the exercises
• You have a question or problem with an assignment or with your tutor’s comments on
an assignment or with the grading of an assignment.

You should try your best to attend the tutorials. This is the only chance to have face to
face contact with your tutor and ask questions which are answered instantly. You can
raise any problem encountered in the course of your study. To gain the maximum
benefit from course tutorials, prepare a question list before attending them. You will
learn a lot from participating in discussion actively.

Summary
The course guide gives you an overview of what to expect in the course of this study.
The course teaches you the basic principles of Nigerian Legal System. As a student of
Political science, it will also acquaint you with the rudiments of Nigerian Jurisprudent.

We wish you success with the course and hope that you will find it both interesting and
useful.

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POL 124 NIGERIAN LEGAL SYSTEM

Module 1
Unit 1; The Concept and Evolution of Law
Unit 2: Law and Morality
Unit 3: Types of Law
Unit 4: Theories of Law
Unit 5: Classification of Law

Module 2
Unit 1; Meaning of Law
Unit 2: The Nigerian Legal System
Unit 3: Sources of Nigerian Laws

Module 3
Unit 1; Nigerian Legislation
Unit 2: The Reasoning behind Legislation
Unit 3: Legislative Process
Unit 4: The Rules of Law and Political Governance
Unit 5: Tools of Social Control via Law

Module 4:
Unit 1. Interpretation of Statutes
Unit 2. Justice and Rights
Unit3 Grounds for Criminal Liability and Punishment
Unit 4 Recklessness, Negligence and Mens Rea
Unit 5 The Legal Profession in Nigeria.

Module 5
Unit 1; The Hierarchy of Courts in Nigeria
Unit 2: The judiciary and Democracy in Nigeria
Unit 3: Commencement of Civil Proceeding in the High Court.
Unit 4: Constitution and Constitutional Democracy
Unit 5: Crime Control in Nigeria

Module 6
Unit 1; An Outline of Civil Procedure in Nigeria
Unit 2: Civil Procedure in the Magistrate Court
Unit 3: Commencement of civil proceeding in the Highcourt
Unit 4: Interrogations and further and better application
Unit 5: Enforcement of Judgments

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Module 7
Unit 1; An Outline of Criminal Procedure in Nigeria
Unit 2: Classification of Offences
Unit 3: Criminal Procedure in the Magistrate Court
Unit 4: Preliminary Inquiry
Unit 5: Summary Trial

Module 8
Unit 1; Legal Aid and Advices in Nigeria
Unit 2: Legal Aid Council
Unit 3: the Necessity of Legal Aid
Unit 4: How to improve the Service of the Legal Aid Council in
Nigeria

Module 1
Unit 1; The Concept and Evolution of Law
Unit 2: Law and Morality
Unit 3: Types of Law
Unit 4: Theories of Law
Unit 5: Classification of Law

UNIT I: THE CONCEPT AND EVOLUTION OF LAW

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Meaning of Evolution of Law
3.2 Importance of Evolution of Law to Mankind
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings

1.0 INTRODUCTION:
A man living in total isolation from others may cut the way he chooses and do anything
according to his fancies and caprices within the limits of his mental and physical ability
in his environment. This cannot be so if he is living with one or more persons whatever
the relationship that exists between them whether the other person is his wife, servant or
family member. This is because, once there exists a minimum level of socialization
between at least two persons, some conflict of interests beginning to manifest. At this
juncture, they deserve somewhat, a rule that would restrict them from acting in an

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arbitrary manner, since one man’s meat is another man’s poison. Thus, this brings in
the concept of law.
2.0 OBJECTIVES
At the end of this unit you will be able to know the following:-
(i) The meaning of Natural law
(ii) The need for Law in a society
(iii) That the natural law of method is a pre-modern conception, etc.

3.0 MAIN CONTENT

3.1 The Meaning of Evolution of Law
From the outset, law has always concerned itself with issues about values, rights, duties/
obligations and justice. However, the issues arise in the process of man’s bid to
institute mechanisms or methods that would bring about a better life for humanity.
Thus, in the course of man’s philosophic quest, natural law developed.

However, the evolution of law is a philosophic ponder/rumination on law which has its
roots in an equity. According to Unah, “The ancient Greeks, in the sense of its later
refinement, bequeathed (to give to others after death) Natural Law to the West by their
search for eternal forms of virtue, especially that of Justice”. As a doctrine, natural law
has meant so many things to so many thinkers across time from different perspective,
positively and negatively.

According to Dias, natural law refers to the “ideals, which guide legal development and
administration. A basic moral quality in law which prevents a total separation of the is
from the ought, the method of discovering perfect law deducible by reason the
conditions which must exist for the existence of law”.

To Cicero, natural law is that time law of right reason which in accordance with nature,
applies to all men and is unchangeable and eternal”.
Jerome Frank notes that “there exists a body of fundamental, unalterable, basic
principles uniformly applicable to all mankind, for the just governance of society, those
principles are rational, it follows that men, by the use of reason, can discover them”.

However, the foregoing definitions and explanations, undoubtedly, portray the natural
law concept as a paragon of beauty devoid of any blemish.

Thus, it is important to note, that, in its modern conception, natural law has shifted
emphasis to content rather than method. It is this conception that gave birth to the term
“natural law of content”. This lays emphasis on the natural rights of man. It holds
that there is a constitutional provision which has a primacy of place, and that the
precious item by which the success or failure of the legal system is to be judged has a
place in the Constitution.

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SELF-ASSESSMENT EXERCISE 3.1
From the angle of natural law, explain the meaning of evolution of law.

3.2 The Importance of Evolution of Law to Mankind.

The essence of evolution of law or natural law is that it had replaced the primitive
theory that might is right. The instinct of self-preservation and egoism will, unless
restrained, invariably cause one of the persons powerful enough, to assert his authority
or power over his fellow man and dominate him. Let alone when a number of
individuals, families or groups are living together in a society.

When socialization got to this level, the habits of the people began to crystallize into
customs and rules. Initially, when rules were broken, the people administered justice by
self-help through forcible reprisals and family feuds.

The rule of force held sway during this period as the weak, the young, the aged and
those who were deficient or disadvantaged one way or the other, were subjected to all
sorts of exploitation and deprivation. It eventually became a necessity for the society to
be organized in such a way that the competing interests in the society will be
harmoniously balanced.
In its initial stages of development, law consisted mainly of customary rules or
practices, and the King or Elders gathering at the village square to resolve disputes
administered ethical values. Social order was thus maintained by a series of
unorganized sanctions such as ostracism, ridicule, avoidance of favours etc. In certain
instances the punishment inflicted was disproportional to the harm.

However, the method of maintaining social order then had undergone many layers of
development and reforms to become what we have today as Rule of Law – that is, the
constitutional doctrine which emphasizes the supremacy of the Law as administered by
the government through its agencies and officials such as the Law Courts, Police,
Ministries, President, Civil Servants, etc.

Constitution, as we know, is the supreme law of the land, which has a binding force on
all authorities and persons within its environment of operation. In its drive to institute
and sustain human rights, the constitution usually provides for the fundamental rights of
man – natural rights which belong to a person for the single reason that he was born a
human being, and those rights enjoyed by him by virtue of the fact that he is a member
of a particular community.

These rights are:-

(i) The right to life – section 33
(ii) The right to human dignity – Section 34
(iii) The right to personal liberty – Section 35
(iv) Right to fair hearing – Section 36

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(v) The right to private and family life – Section 37
(vi) The right to freedom of thought, conscience and religion- Section 38
(vii) The right to freedom of expression and the press – section 39
(viii) The right to peaceful assembly and association – Section 40
(ix) The right to freedom of movement – section 41
(x) Right to freedom from discrimination – Section 42
(xi) Right to own and acquire immovable property – Section 43
(xii) The right of adequate payment for private property compulsorily acquired for
public purposes – Section 44
It is therefore, pertinent to know that the 1999 Constitution of the Federal Republic of
Nigeria has made provisions under Sections 33 to 44, the Fundamental Rights of the
Citizenry. Thus, since the Constitution aims at the realization of the natural rights of
man, it stands to reason that man must abide by the rules that promote these rights. A
violation of these rules results in anarchy.

SELF-ASSESSMENT EXERCISE 3. 2
Enumerate and explain the fundamental rights of man as stipulated in the 1999
Constitution of the Federal Republic of Nigeria.

4.0 CONCLUSION
In this unit we have discussed and defined the Concept and Evolution of Law, its
importance to humanity. We have also enumerated different kinds of the fundamental
rights as enshrined in Section 33 – 44 of the 1999 Constitution of our country. Thus,
we conclude that it is the ideal right that gives birth to rules and regulations within the
context of a social structure.

5.0 SUMMARY
It is worthwhile to sum up by asserting that the purpose of any rule for man in society is
to help him seek the common good, live in society, do good to others, avoid harming
others, and render to each his own best. Notwithstanding Sections 33 – 44 of our
Constitution, Section 45 therefore restricts individuals from the abuse of these
fundamental rights. Thus, thou shall not kill and love thy neighbours as thyself; this
reminds us of the golden rules or the Ten Commandments in the Holy Bible.

5.0 TUTOR MARKED ASSIGNMENT

(i) What is the importance of Evolution of Law to mankind?
(ii) What are the fundamental rights and duties as provided in Sections 33 – 45 of
1999 Constitution of the Federal Republic of Nigeria?

6.0 REFERENCES/FURTHER READINGS

Akaniro, E. G. (1997) – A Study Guide to General Principles of Nigerian Law, Ikeja,
Elcoon Press Ltd.
Dias, R. W. M. (1976) – Jurisprudence, London, Buther Wors.

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Fisher, B.D. (1977) – Introduction to the Legal System: Theory, Overview, Business
Applications - Western Publishing Co.
Nnayelugo Okoro and Aloysius-Michaels Okolie, (2004) – Law, Politics and Mass
Media In Nigeria, Nsukka, Prize Publishers Ltd.
Sanni, A. O. (1999) – Introduction to Nigeria Legal Method, Ile-Ife, Kuntel Publishing
House.
The 1999 Constitution of the Federal Republic of Nigeria.

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UNIT 2: LAW AND MORALITY

CONTENTS:
Introduction
Objectives
Main Content
.1 Law and Justice
.2 Types of Morality; and
.3 Custom and Law;
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
The positivists posited that nothing is law except the one laid by the sovereign or his
agents. The law and morality, according to them, are mutually independent and
positive law does not derive its validity from moral values. However, in discussing the
validity and efficacy of law in the human society, one vital question that flows naturally
from the whole gamut of the discussion is whether there can be laws that are not built or
constructed, without the support or sinews of sound moral judgments. The positivists
do not believe that ethics, religious or moral rules are law unless they are enacted into
law. Therefore, since the ultimate aim of law is to do good, there is no doubt that law
has a commonality of interest with morality which is basically concerned with good and
bad in society.

2.0 OBJECTIVES
In this unit, you are expected to know the following:-
(i) The difference between morality and law.
(ii) Custom and law.
(iii) That morality is a very vital constituent of law.
(iv) That what is morally right may be legally wrong and vice versa.

3.0 MAIN CONTENT

3.1 The difference between Morality and Law:
In some way, law and morality may appear to mean the same thing and the two are
often confused. The resemblance derives mainly from the imperative nature of both and
the language employed. For instance, “Thou shall” or Thou shall not”.

In some cases, the law appears to be behind morality while the converse is the case in
others. For instance, while adultery is a moral question in some part of Nigeria, it is not
an offence under the law. This shows that the level of moral approach is not strong
enough to make it an offence. On the other hand, the law may go beyond the prevailing

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level of morality in the society. In such cases, the incidence of breach is often high.
The laws against abortion or obscenity are glaring examples of this.

Morality, no doubt, is a very vital constituent of law. Although the ultimate sanction of
law is force. It can control only external acts, but it cannot enjoin or control a
spirit/conscience.

Morality appeals to a person’s conscience and sense of right and wrong, of what is good
and what is evil. As a principle of human conduct, conscience becomes a self-
legislating mechanism, enabling a person to choose according to the consciousness of
his own liberty.

Therefore, one distinguishing factor is the availability of sanction. Law, unlike morals,
almost always provides for definite sanction while the breach of a moral code may only
incur societal disapproval or spiritual disapprobation.
Similarities of Law and Morality
Basic principle of morality is also the basic principle of law which means that good
must be done and evil must be avoided. According to Prof. Hart with regard to the place
of morality in law, he threw more light in the following words:

“The law of every modern state shows at a thousand point, the influence of both the
accepted social morality and wider moral ideals. These influences enter the law either
abruptly and avowedly through legislation or silently and piecemeal through the
judicial process. In some systems as in the United States the ultimate criteria of legal
validity explicit incorporate principles of Justice on substantive moral values. The
further ways in which law mirrors morality are myriad, and still insufficiently studied,
statutes may be a mere legal shall and demand by their express terms to be filled out
with the aid of moral principles”.

Although a rule of law does not become illegal or inoperative merely because it is
against the moral code of a society, morality often gives content to law, as opposed to
the claims of the positivists; many laws are therefore predicated or based on moral
values.

Thus, once upon a time, there was a running controversy over the extent to which law
should be employed to deal with questions of morality. The argument has been
advanced that a particular conduct should not be made punishable by law, merely
because the wider society considers it to be immoral, unless the need arises to prevent
harm to others. But the difficulty is in the determination of where to draw the line
between private harm and societal or public harm.

SELF-ASSESSMENT EXERCISE 3.1

What are the distinguishing features between law and Morality?

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3.2 Law Morality and Justice
It is important to note that the appeal to a person’s conscience in respect to what is good
or bad is done within the spectrum of what the community regards as good or bad or
evil. It is upon this predication or base that the talks about ideal morality and positive
morality emerged. Thus, morality can be viewed from two separate angles.

Ideal Morality dwells on morality in the context of the individual as a person while
positive morality discusses morality in relation to the individual as a member of a
community.

As part and parcel of the community, the individual is expected to abide by the
approved norms of behaviour in the community. In this regard, his sense of what is
right or wrong is essentially controlled by what the community defines as good or bad,
as the case may be.

Positive morality, therefore, refers to a body of rules supported by the prevalent opinion
of the community to which the individual belongs at any given time.

Law on the other hand, is a refection of a society’s morality. But law and morality are
not one and the same thing as what is morality right, may be legally wrong and vice
versa.

Justice is fairness, equity and the right application of the law. Justice is what is what the
law supposed to produce. Though, law is synonymous with justice, yet law is not
always just, such as, when a rigid application of law results in injustice. According to
Black Stone, “Justice is a reservoir from where the concept of right, duty and equality
evolves”. While, Salmond, further opined that, “though every man wants others to be
righteous and just towards him, he himself being selfish by nature may not be reciprocal
in responding justly.” This is why some kind of external forces are necessary for
maintaining an orderly society. Hence, without justice, an orderly society is
unthinkable.

Therefore, whilst a person desires absolute freedom to do and undo whatever he likes,
the state has had to limit such freedom in the overall interest of everyone and society in
general. Thus, law develops society and society develops the law by reforming it.

SELF-ASSESSMENT EXERCISE 3.2

Explain the two angles of morality.

3.3 Custom and Law

Customs, like law, also have normative values and command obedience from members
of the society. But in spite of their effectiveness, they are easily distinguishable from
laws so properly called.

19
Law, unlike custom, attracts physical coercion, is more regular and consistent, and
invokes a greater authority.

A custom does not become legally binding unless it receives the force of law.
However, with the growth of society and increased sophistication, the relevance of bare
customs as sustaining norms has gradually declined and easily yields to any law on the
same subject. For example, old customs have been given the force of law for the sake
of commercial convenience. Such accepted customs are to be respected as laws only
because they are pronounced to be so by the courts.

SELF-ASSESSMENT EXERCISE 3.3

Distinguish between custom and Law.

4.0 CONCLUSION
In this unit we have differentiated law from morality, discussed their similarities,
different/types of morality. We also differentiated law from custom. Thus, we could
conclude by opining that in as much as law has the overriding character of force or
coercion the philosophy of thought of taking cognizance of established thoughts,
beliefs, customs, habits and values of a people becomes a significant factor in the
process of establishing a conducive environment that would promote obedience to the
laws of the land.

5.0 SUMMARY
It is important to stress that the concept of what is good or evil varies from society to
society, and from time to time. On the other hand, what is morally good today may be
morally bad tomorrow, and vice-versa, because, while the few basic principles of
morals do not change, others do. Countless human actions are neither good nor bad in
themselves but get their goodness badness from circumstances of time, place, object
and intent.

6.0 TUTOR-MARKED ASSIGNMENT

Compare and contrast between law and morality.

7.0 REFERENCES/FURTHER READING

Dennis Lloyd, (1979) – The Idea of Law, England, Penguin Books.

John Ohireime Asein, (1998) – Introduction to Nigerian Legal System, Ibadan, Sam
Bookman Publishers.

Nnayelugo Okor and Aloysius-Michael Okolie (2004) – Law, Politics and Mass
Media in Nigeria, Nsukka, Prize Publishers Ltd.

20
Okonkwo, C. O. ed., (1980) – Introduction to Nigerian Law, London, Sweet and
Maxwell.

Sanni, A. O. ed., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel

Publishing House.

21
UNIT 3 TYPES OF LAW

CONTENTS

1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Eternal Law
3.2 Divine Law
3.3 Natural Law
3.4 Human or Positive Law
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
Laws in the widest possible connotations are any necessary relation arising from a
things’ nature. In this sense, all beings have their laws: the Deity his laws, the material
world, its laws, the intelligences superior to man, his laws, the beasts, their laws, man,
his laws.

Since the use of the world “law” is so diverse, it is necessary to consider further the
various types of law in order to deepen our knowledge of the nature of law within the
context of our study.
2.0 OBJECTIVES
At the end of this unit, you will be able to know the following:-
(i) Different types of law.
(ii) That, at best, eternal law, divine law and natural law represents what ought to be
law and not what is law.
(iii) That all beings have their laws.

3.0 MAIN CONTENT

3.1 Eternal Law
The word eternal is derived from eternity. It literally means something that has always
existed, has never changed and will always exist. Hence, eternal laws are laws that are
constant, everlasting and universal. For instance, the laws of gravity, floatation and
motion are the same all over the world since the time of the pre-historic cave man up till
the present time. It is doubtful if any man-made law exists that fits the above definition
of eternal law. This is because law is certainly not the same everywhere; it reflects
different values in different cultures and different epochs.

3.2 Divine Law

22
The literal meaning of divine law is law of God. A perfect example of divine law is the
Ten Commandments contained in The Holy Bible. Divine law is based on the
premise that man is incapable of making a valid and just law because he is sinful by
nature. Hence, man must turn to God, who is the governing authority of the universe
for perfect law. Since God no longer physically hands over law to man as he was
reported to have done for Moses in The Bible, the early Christians believed that the
Pope was the only ultimate representative of God on earth vested with authority to
expound and interpret divine revelations. The laws so interpreted and expounded were
enacted into Papal Decrees and binding throughout the Roman Empire. Any other laws
created by secular authorities were no law and did not command the obedience of the
people.

3.3 Natural Law

Law of nature has been given different meanings. Some writers say it is that which
accounts for the behaviour of creatures generally, whether human beings, animals and
plants. For instance, plants under given circumstances behave in a particular way and it
is the law of nature which makes us sleep, laugh and angry.

A good example of the law of nature is Law of Karma, Poetic Justice or Law of Sowing
and Reaping. There is another theory regarding natural law guiding the behaviour of
man as man because man has reason. This is called the natural law and not the law of
nature.

3.4 Human or Positive Law

Positive Law means the same thing as human law. This is in contradiction to the type
of law earlier considered, that is eternal, divine and natural law. Law within the context
of divine, eternal and natural law as earlier noted is a far cry from what obtains in the
society. It is perhaps this observation that led the positivist school of jurisprudence to
say that nothing is law except the one laid by the sovereign or his agent. At best,
eternal law, divine law and natural law represent what ought to be law and not what is
law.
SELF-ASSESSMENT EXERCISE
Distinguish and explain different types of law.

4.0 CONCLUSION
We have discussed the various types of law in order to vividly understand laws in the
widest possible connotations, and these laws are eternal law, divine law, natural law and
human or positive law.

5.0 SUMMARY
The law of any nation therefore is the aggregate of all the human laws contained in the
different sources of law such as Statute, decided cases, International law etc. However,
every state recognizes that law is what it makes it and that it has the responsibility to

23
 fashion its law in such a way that it can best achieve certain set objectives which may
be different from time to time. If the law of a State does not meet the needs of that
State, it will be the fault of that particular State and not God or nature.

6.0 TUTOR-MARKED ASSIGNMENT

Distinguish between eternal law and divine law. What fundamental change did the
evolution of natural law bring in man’s conception of law?

7.0 REFERENCES/FURTHER READING

Akaniro, E. G., (1997) – A Study Guide to the General Principles of Nigerian Law,
Ikeja, Ekoon Press Ltd.
Dennis Lloyd, (1979) – The Idea of Law, England, Penguin Books.
Goodhart, A. L., (1959) – Essays In Jurisprudence and the Common Law
Sanni, A. O. ed., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel
Publishing House.

24
 POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 5: THEORIES OR PHILOSOPHIES OF LAW

CONTENTS:

1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Natural Law School
3.2 The Historical School
3.3 The Positive School
3.4 Sociological or Functional School
3.5 The Realist School
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings

1.0 INTRODUCTION
In order to satisfactorily answer the question what is law? One must therefore delve into
jurisprudence. Jurisprudence is the study of legal philosophy. In as much as
philosophy consists of one’s belief about something or thoughts, the question as to what
law is all about, is provided by examining different beliefs of prominent scholars to
ascertain what they have deemed is law. Thus, the various beliefs have come to be
known as theories or philosophies of Law, or School of Jurisprudence.

2.0 OBJECTIVES
At the end of this unit, you are expected to know the following:-
(i) What jurisprudence is all about?
(ii) Different types of legal theories.
(iii) Which of these philosophies of law do you consider most appropriate?

3.0 MAIN CONTENT

3.1 The Natural Law School:
The central thesis of this School of thought is that law has a divine or supernatural
origin and that for human laws to be legally valid, they must conform to certain
objective moral principles based on the nature of man and the dictates of reason. It was
precisely based on the divine right theory, the prevailing belief at that time that man
was totally subject to the will of God and incapable of making the right law to shape his
world.

25
 However, the main problem, which confronted the natural law thinkers, was how to
check the absolute power and its abuse by heavy-handed monarchs. Thus, the natural
law school offers a convenient basis or starting point for the development of the concept
of fundamental (natural) rights – equality, human rights, democracy and the rules of
natural justice the world over.

3.2 The Historical School:

This theory was developed to counter the widespread influence of the natural law
school in the seventeenth and eighteenth century Europe in overthrowing the Monarchs
and creating egalitarian societies. Thus, the historical school viewed law as an
outgrowth from the history of the society rather than an artificial contrivance. The
denial of artificiality is an aspect, which it shares with the natural law school.

According to the historical school, there is what is called, “a spirit of the people binds
the people of a particular society together and distinguishes them from any other
people”. Accordingly, before a law is made for a society, there must be a good
understanding of the history of the people.

Therefore, for the law to be valid, it must accord with the history and the way of life of
the people that is, their customs.
3.3 The Positive School:
This school emerged at a time when scholars were beginning to realize the need for
imperialism in the study of philosophy. Diametrically opposed to the natural and
historical schools is the positivist school, which denies the upward growth of law from
the society.

The positivists posited that nothing is law except the one laid by the sovereign or his
agents. The agents of the sovereign, permitted to make law according to this school, are
the legislators and judges.

Therefore, laws are those made by the sovereign or through his agents by Statutes or
Case laws. They believe that laws are not ethics, religious or moral rules unless they
are enacted into law.

3.4 The Sociological or Functional School:

This school of thought is particularly attractive for its insistence that jurists should study
the actual social effects of legal institution and ensure that legal rules are effective in
achieving the purpose for which they are designed.

Therefore, the functional school considered law from the point of view of what the
courts will do with respect to a particular legal problem. Notwithstanding what may be
contained in the Statutes and prior decided cases, one has to wait for a court’s decision
on a particular legal problem before one can know what the law is.

26
3.5 The Realist School:
The greatest advocate of the Realist School was Justice Oliver Wendell Holmes of the
United States Supreme Court. He saw law as an expression of the State through the
courts, which in essence, occupy the position of the sovereign. However, he
emphasized the element of uncertainty in law and the role of judges in the law-making
process. In order to know the law, he argued, one must look, not into Statute books, but
up to the courts. Therefore, this theory was mainly focused on the court system –
particular trial courts. They did not want the judicial system biased in favour of the
good boys and against the bad boys.

SELF-ASSESSMENT EXERCISE
Discuss the views of the different theories of law.

4.0 CONCLUSION
In this Unit, we have discussed the theories or the philosophies of law, such as the
natural law school and its views on law, the positive school, the sociological or
functional school, and finally, the realist school as they conceptualized law from
different backgrounds and orientation.

5.0 SUMMARY
Their different backgrounds and experiences undoubtedly, informed their cardinal
conception of law from different angles. For instance, the angle from which a judge
would view a particular case or law will be different from that of a legislator.

6.0 TUTOR-MARKED ASSIGNMENT

Critically comment on the various theories of law.

7.0 REFERENCES/FURTHER READING

Atiyah, P. S., (1983) – Law and Modern Society, London, Oxford University Press.

John Ohireime Asein, (1998) – Introduction to Nigerian Legal System, Ibadan, Sam
Bookman Publishers.

Sanni, A. O., (1999) – Introduction to Nigeria Legal Method, Ile-Ife, Kuntel Publishing
House

27
 POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 5: CLASSIFICATION OF LAW

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Private Law and Public Law.
3.2 Civil Law and Criminal Law.
3.3 Civil Law and Common Law.
3.4 Substantive Law and Procedural Law
3.5 Written Law and Unwritten Law
3.6 Municipal Law and international Law
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
Law can be divided into different branches such as Law of Contract, Company Law,
Labour Law, Constitutional Law, Criminal Law, etc. Within each subject classification
you will find a body of rules and principles, which have been developed over the years
on a particular aspect of law. The evolution and nature of subject sometimes differ
significantly from one another. While some subjects such as law of contract have very
old origin, others such as Human Rights, Environmental Law and Labour are purely
Statutory in nature. It is important to note here that there is no single universal mode of
classifying law, but law can be classified in multifarious ways.

2.0 OBJECTIVES
At the end of this Unit, you will know in details the following:-
(i) Each one of these classified laws.
(ii) That there is no single universal mode of classifying law.
(iii) That it is important to classify law into different subjects.

28
3.0 MAIN CONTENT

3.1 Private Law and Public Law:

Private Law comprises those laws that serve to regulate the conduct of persons in their
interpersonal dealings, conferring status, rights and obligations on individuals or
corporate persons. It includes such diverse areas as the law of contract, property law,
tort, family law and succession, commercial law, equity and trust, etc. Thus, private
law is that branch of the law of a country, which governs the relationship of citizens
among themselves.

Public Law, on the other hand, is primarily concerned with the smooth running of the
machinery of State and, consequently, caters for cases where the interest of society is
directly involved or the smooth interaction between governmental agencies and organs
of the State is threatened. Subjects like Constitutional law, Administrative law,
Criminal law, Revenue law, etc., fall within the purview of public law. Thus, public
law is the branch of a country’s law, which governs the relationship between the State
and the citizens hence the name public law.

3.2 Civil Law and Criminal Law:

Civil Law is primarily concerned with competing private interests 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
such actions as juristic persons. Civil actions are commenced in accordance with the
relevant rules of civil procedure, the object being to obtain relief either by way of
damages or injunction. Thus, civil law has several meanings depending on the context
in which it is used. In this context, it means the law, which defines the rights and duties
of persons to one another and provides a system whereby an individual who is injured
by the wrongful act of another can be compensated for the damage, which he has
suffered. Examples of civil laws are law of contract, torts, land law, family law.

Conversely, 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. Punishment is imposed generally
by means of imprisonment or fine or both. Thus, the main object of criminal law is to
punish wrong doers thereby seeking to protect the collect interests of the citizenry
against the detrimental conduct of its constituent members.

3.3 Civil Law and Common Law:

Civil Law has its origin in the Roman, 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. Under the Civil Law system, a higher legal status is given to the code

29
(statutes). A code is believed to be its own guide to the interpretation of its provision.
The Civil Law employs inquisitorial procedure.

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.

Thus, common law is used in this context to describe the English legal traditions while
civil law is used to describe Roman law or Roman-legal tradition.
3.4 Substantive law and Procedural Law:
Substantive law comprises the rules of law and those legal principles that define the
existence and extent of a right or liability in a particular branch of law. It is concerned
with the creation, definition and limitation of obligations.
However, in relation to legal proceedings law can be broadly divided into substantive
law and adjectival law. Substantive law embraces such subjects like Law of Contract,
Torts, Criminal Law, Constitutional Law, etc. which are concerned with statement of
rights, duties and liabilities of individuals.

On the other hand, Procedural Law involves the rules by which an action may be
brought and disposed of. It prescribes the method for enforcing the rights and duties
and obtaining redress for wrongful invasion of those rights as well as the enforcement
of obligations or duties. Thus, as the name implies, it deals with the methods of
initiating proceedings to enforce a certain right or duty and how the litigation or
prosecution is conducted.

3.5 Written Law and Unwritten Law:

Law may either be written or unwritten. The word written here has a technical meaning.
It means a rule of law that has been formally enacted into a Legislation or Statute by the
legislatures. Such laws before their enactment are usually subjected to rigorous debates
and serious scrutiny through several stages before they are enacted and signed into law
by the Chief Executive of the State.

The unwritten law could be explained from two different perspectives. Firstly, it may
mean any principle or rule of behaviour that is not written down at all as in the case of
Customary Law and Conventions. Secondly, it could also mean any un-enacted law
even if the principles are reduced into writing as in Case laws.
3.6 Municipal Law and International Law:
The classification of laws into Municipal and International underscores the territorial
limitation of laws. Usually, the laws of a sovereign State do not operate outside its
boundaries. So, municipal laws are such laws emanating from a particular country and
having the force of law within its territory.

30
 International law, on the other hand, 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.
While individuals or juristic persons are the main subjects of municipal laws,
international law deals primarily with States.

4.0 CONCLUSION
We have discussed in full, the classification of law. However, classification may
acquire a momentous of its own and come to dictate the way in which the law is
applied. Hence, it is important to know that to classify law into different subject carries
with it a danger. Thus, lawyers may rigidly classify their clients’ claim in terms of a
particular subject and fall to see that there might be a successful argument in other
branches of law that may be put to the court.

SELF-ASSESSMENT EXERCISE
State the differences between the various classifications of law.

5.0 SUMMARY
Classification should be the lawyer’s servant not his master. Lawyers should be able to
reason flexibly from the facts to the classifications and then back to the facts until all
the legal issues are properly analyzed and researched from all possible angles.
6.0 TUTOR MARKED ASSIGNMENT
Enumerate the various classes of laws.
7.0 REFERENCES/FURTHER READING
John Ohireime Asein, (1998) – Introduction to Nigerian Legal System, Ibadan, Sam
Bookman Publishers.
Okonkwo, C. O. ed., (1980) – Introduction to Nigerian Law, London, Sweet and
Maxwell.
Sanni, A. O., ed., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel
Publishing House.
Wade, H. W. R., (1971) – Administrative Law, Oxford University Press.

POL. 124 NIGERIAN LEGAL SYSTEM

MODULE 2
Unit 1: Meaning of Law
Unit 2: The Nigerian Legal System
Unit 3: Sources of Nigerian Law.

31
 UNIT 1 THE MEANING OF LAW
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
4.0 Meaning of Law
4.1 Features of Law
5.0 Conclusion
6.0 Summary
7.0 Tutor Marked Assignment
8.0 References/Further Readings

1.0 INTRODUCTION
Nigeria came to independence with a well-established legal system that included a court
system and a thriving legal profession in the British tradition. Therefore, in any society,
all over the world, as it is in Nigeria too, there are laws rules and regulations and a
system of enforcement put in place by which life and human activity are governed in
such society. Therefore, the fundamental purpose of this topic - Nigerian Legal System;
is to highlight the nature, source, development, features, courts system in Nigeria, etc
for a better understanding of Nigerian legal system for the students of Political Science
in this respect.

2.0 OBJECTIVES
At the end of this unit you aught to have understood the following:
i) The legal system of Nigeria
ii) The Concept of Law
iii) The Functions of Law
iv) The Legislative Process

3.0 MAIN CONTENT

3.1 Meaning of Law
The term “legal system” means, the laws, courts, personnel of the law and the
administration of Justice System in a given state, country or geographical entity. It is
important to note that, a legal system is composed of the above four elements.
Therefore, Nigerian legal system is the laws, Courts and personnel of the law and the
administration of justice system in Nigeria.

Naturally however, the concepts of law raise the question as what law is? In as much as
this seemingly simple question is not all that so easy to answer, Longman Dictionary of
Contemporary English (New Edition), has defined law as a rule that is supported by the
power of government and that Parliament makes/passes laws. There ought to be a law
against that sort of antisocial behaviour.

32
 Very few, if any, areas of law are spared the problem of definitions. In the words of
Cicero, “everyone may understand the subject of enquiry, to attain this objective, it is
vital that we commence from the standpoint of lucid definitions.” Even the meaning of
the phenomenon ‘law’ is not settled with any clear finality. According to Hart, few
questions concerning human society have been asked with such persistence, and
answered by serous thinkers in many divers, strange and even paradoxical ways as the
question: What is law? Generally speaking, the concept of law may mean different
things to different people. The physicist speaks of the law of gravity or Newton’s law of
motion and the economist, the law of supply and demand. However, these usages of the
word of law denoted a rule of action expressing a verified regular pattern of behaviour
or consequences in a given circumstances. Nevertheless, the lawyer is more interested
in its narrow and guarded meaning as a rule of human conduct tacitly or formally
accepted by a people as binding and backed up by some mechanism for the sustenance
of its binding nature.

3.2 The duties of law

Law, whether Divine, natural, or human is a necessity for right life or good life in any
realm. The functions or relevance of law to society are numerous and may not be
completely enumerated. However, the functions of law in society include:
(i) It is a code of conduct. A rule of action to ensure that person, bodies and society live
orderly and peaceful lives.
(ii) It specifies the structure, framework and the order for all aspects of life and society,
whether it be the structure of government, education and so forth.
(iii) It is a means of resolving and settling disputes peacefully. It is a means for
administration of justice through the establishment of a court system.
(iv) It is a guarantee of rights, freedoms and duties. It is a necessary framework to
ensure a free society.
(v) It ensures order and peace in society; otherwise life would be brutish, nasty and short.
Law is an instrument of civilization, but lawlessness is opposite and anti-civilization.
(vi) It is an instrument of political, economic and social change and stability. It can be used
to restructure any aspect or sector of society, to improve, re-organize, upgrade,
preserve, project, establish, revive, save pardon and so forth.

It provides the environment that enables individuals and society to live operate and to
realize their ambitions and to reach their fullest potentials.
3.3 FEATURES OF LAW
The followings are the features of law:
(i) Law is a body of rules: When a layman thinks of the law, he is probably of the
opinion that all the laws of a state are contained in one single document, perhaps the
Constitution. However, this is not the case, for instance, the offence of murder and the
penalty is nowhere expressly written in the Constitution. But this is rather enshrined in
section 316 of Criminal Code. Thus, law is made up of multifarious rules some of
which are written in the Constitution and various other Statutes.

33
(ii) Dynamic in Nature: Law is not static but dynamic. Since law is meant to regulate the
behaviour of man in the society, the content of the law of each society usually changes
as the social, political and economic world in which he lives changes.

(iii) It has an Element of Coercion: Breach of law is usually enforced by means of

sanction or coercion or coercion through an organized institution such as the Police
Force, law courts, tribunals, prisons etc.

(iv) It is Man-made: Laws are rules that society adopts to govern itself. As a result, man
has the responsibility to determine to a large extent the content of the law of his society.
If the law is bad or ineffective, man must take responsibility for it and cannot blame
God or nature.

(v) Territorial Limitation: Law is usually made to guide the conduct of the people of a
particular society or country and are binding on the people and properties within that
territory. While the law of two or more communities may be similar, there are usually
some marked differences depending on their respective needs, objectives, cultural,
religions and other values. However, it is the differences in the laws of two or more
states that necessitated comparative studies of law.

(vi) It is normative in character: Law is a norm, which tells us what to do and what to
refrain from doing in order to achieve a particular objective. For example, the rules of
criminal law, which forbids stealing, and the killing of another under certain
circumstances are to guarantee security of lives and properties.

Thus, the above features of law would enable the student to vividly understand the
meaning of law in all its totality.

SELF-ASSESSMENT EXERCISE
State the various duties of law in a society

4.4 CONCLUSION
The divergence of views on the essence of law could, however, be explained by noting
that each school of thought is influenced largely by its peculiar social and political
experience, historical context, etc. but all had therefore come to the conclusion of what
law is the rules which define the way people are governed. It is also a combination of
expectations such as enforcement, sanctions, obligations and obedience, not minding
who is who, in order to make law serve its end.

5.0 SUMMARY
The survival of human society from the time immemorial has been made possible by
the adherence of man to a set or body of rules and principles that governs human

34
conduct. A legal system or regime is therefore essential for any given unit of people,
community, state, or country. The essences of legal system, among other things, are to
ensure law, order peace in society. It guarantees of rights, freedoms and duties; assures
the safety of life, property and society. It equally provides a forum, that is, courts and so
forth for the peaceful and orderly resolution of disputes. It assures progress and
advancement of society, and finally, provides a framework for individual self-
realization and for society to achieve its goals.

6.0 TUTOR MARKED ASSIGNMENT

(i) Define law, and why does Law mean different things to different people?
(ii) What are the features of Law?

7.0 REFERENCES/FURTHER READINGS

Ese Malemi, (1999) - Outline of Nigerian Legal System, Grace Publishers Inc.

Gabriel A. Almond, G. Bingham Powell, Kaare Storm, and Russell J. Dalton,

(2001) - Comparative Politics Today (A world View), India, Replika Press (P) Ltd.

John Ohireime Asein, (1998) - Introduction to Nigerian Legal System, Ibadan, Sam
Bookman Publishers.

Longman Dictionary of Contemporary English New Edition, (1978) - Great Britain,

Richard Clay Ltd.
Nnanyelugo Okor and Aloysius Michaels Okolie, (2004) - Law, Politics and
Media in Nigeria, Nsukka, Prize Publishers Ltd.

Sanni A. O., (1999) - Introduction to Nigerian Legal Method, Ile-Ife, Kuntel

Publishing House

35
 POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 2: THE NIGERIAN LEGAL SYSTEM

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Duality
3.2 External Influence
3.3 Geo-Cultural Diversity
3.4 The System of Precedents
3.5 Order of Judicial Hierarchy
3.6 Fusion of the Legal Profession
3.7 Military Influence
3.8 The nature of Nigerian Law
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assigned
7.0 References/Further Readings

1.0 INTRODUCTION
Since a person desires absolute freedom to do and undo whatever he likes, the state has
had to limit such freedom in the overall interest of everyone and society in general. As a
result, human conduct and almost every field of human activity is regulated by law,
prescribing standards of behaviour or prescribing at least some basic structure, or
conclusion for operating in a given field of endeavour. Where law guarantees a right,
there is created a corresponding duty. Similarly, whenever law imposes a duty, it also
creates a corresponding right.

2.0 OBJECTIVES
In this unit you should be able to understand the following:
(i) A detailed knowledge of Nigerian Legal System
(ii) Expose to the underlying general principles of law
(iii) That the subject of Nigerian legal system cuts across all aspects of law
(iv) Without law, rules and regulations and a law enforcement system, society would be in
disorder.

3.0 MAIN CONTENT

Features of Nigerian Legal System
3.1 Duality
As a result of the colonial influence and the subsequent imposition of English law,
Nigerian legal system has acquired a dual structure comprising customary and English

36
laws. Islamic law, which has a wider application in the northern states of the country,
though not indigenous, is for all practical purposes treated as customary law. 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.

3.2 External Influence:

Nigerian law has borrowed heavily from diverse external sources beginning with the
influence of Islamic law in Northern Nigeria as a by-product of the nineteenth century
Fulani Jihad. Islamic law has today supplanted the indigenous customary laws of many
communities in the Northern part of Nigeria, following the acceptance of the Islamic
faith.
English law remains a major source of Nigeria law. Every attempt to reshape and
reform the latter, at least until recently, either ended up following the English pattern or
deliberately made room for the English rules of practice and procedure. 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.
3.3 Geo-cultural Diversity:
Geo-cultural diversity 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, spanning
across a vast geographical area, each having its peculiar custom and norms differing in
some way from those of its neighbours. This situation has further compounded the task
of proving customary law and the attainment of a harmonized Nigerian common law.

3.4 The System of Precedents:

Nigeria has imbibed the tradition of stare decisis (let the decision stand), 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 that
precedent strictly binds the lower Courts even where they are inclined by good reasons
to do so. This practice of obeying precedents has been justified on the grounds that it
enhances certainty and predictability in the law and minimizes the influence of personal
bias against settled principles of law.

3.5 Order of Judicial Hierarchy:

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 measures of
original jurisdiction in selected matters.

3.6 Fusion of the Legal Profession:

37
 Legal practitioners in Nigeria are trained as barristers and solicitors within unified
training scheme at the university level and, therefore, 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, and they are under the overall control of the Bar
Council.

3.7 Military Influence:

The impact of the incessant interventions of the military in Nigeria’s political
development has left an indelible mark on its legal system. Despite the repeated
dismantling of governmental structures, it is commendable that the judiciary has always
survived those eras with the least interference.

3.8 The nature if Nigerian Law.

Attribute or the characteristics of the legal system
The legal development of all former British colonies of which Nigeria is one, cannot be
separated from the reflections of colonialism. Thus, fact that Nigeria was once a colony
of England, and a consideration of how the laws of Nigeria involved is necessary. Here,
focus will be the nature of Nigerian Legal System.

Nigeria, like many other African countries may be classified under the common law
system. It has, however, not lost touch with its indigenous African character as
evidenced by the strong impact of the rules of customary law. However, the nature of
law in the context of human society is different from the nature of law in the physical
realm such as the law of motion, the law of gravity, the law of thermodynamics etc.
When we talk about law in the human society, we mean that set or body of rules that
frames human actions. In this respect, the purpose or nature of Nigerian law among
other things, is to order or prohibits certain actions, disobedience of which involves a
penalty by the government.

In this regard, the nature of Nigerian law has many attributes or characteristics, and
these attributes of law include the following:

(a) Nigerian law is usually made by the legislature, that is, the parliament, or by delegated
authority.
(b) This august body has the power to make laws for the peace, order and good governance
of Nigeria. By virtue of legislation or statutes, successive governments have affected,
more and more positively the political, economic and social aspects or national life.
(c) Law today is mostly codified, that is, written, at the insistence of the lawmakers,
especially, when it is made by parliament and so forth. Nevertheless, laws that emanates
from custom are mostly unwritten-common laws.
(d) And finally, the law is fundamental and pervasive. There is law with reference to nearly
all things Nigeria law, therefore, covers and regulates practically all aspects of life and
human activity.

38
 SELF-ASSESSMENT EXERCISE
What are the attributes of the legal system?

4.0 CONCLUSION
In this unit we have discussed Nigerian legal system, such as, its duality, external
influence, geo-cultural diversity, the system of precedents, its order to judicial
hierarchy, fusion of the legal profession, and its military influence. It is therefore, apt to
conclude that a legal system is a necessity to ensure a safe, progressive and free society.
There has to be law an order so that lives, property and society will be safe, orderly and
peaceful.

5.0 SUMMARY
The existence of a legal system is therefore a necessity in the overall interest of
everyone and society for the continued protection of person, their properties, rights and
freedoms on the one hand, and for the safety of the state and its interest on the other
hand, as opposed to lawlessness, chaos and disintegration.

6.0 TUTOR MARKED ASSIGNMENT

The relevance of a legal system cannot be over emphasized, explain this in the overall
context of the Nigerian legal system.

7.0 REFERENCES/FURTHER READING

Ese Malemi, (1999) - Out line of Nigerian Legal System, Lagos, Grace
Publisher Inc.

Jimmy Chijioke, (1998) - The Eggheads Business and Co-operative Law Study Pack,
Abuja.

John Ohireime Asein, (1998) - Introduction to Nigerian Legal System, Ibadan, Sam
Bookman Publishers.

Sanni, A.O., (1999) - Introduction to Nigerian Legal Method, Ile-Ife, Kuntel Publishing
House.

UNIT 3 SOURCES OF NIGERIAN LAW

CONTENTS
1.0 Introduction

39
2.0 Objectives
3.0 Main Content
3.1 Local Legislation.
3.2 The Constitution/Legislative Competence.
3.3 Case Law/Judicial Precedence
3.4 English Law.
3.5 Customary Law.
3.6 International Law.
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings

1.0 INTRODUCTION
Nigeria like other country is governed by legislation, rules and principles, all aimed at
establishing and sustaining an orderly Nigerian society. It is however, pertinent at this
juncture, having looked at the meaning and nature of Nigerian legal system, to study the
various sources of what is today referred to us as Nigerian law. But the expression
“sources of Nigerian Law” is capable of bearing several meanings depending on the
context in which it is used. It could mean either the starting point of Nigerian law or the
place from which the law can be got, i.e, the literal or material source, the historical
sources, the formal sources or the legal sources of a rule of law. But it is of largely
shaped by our Colonial Masters namely, Britain. Prior to the amalgamation by Lord
Lugard in 1914, there existed three distinct administrations in the geopolitical entity that
is today known as Nigeria. Therefore, Nigerian law sprang from two principal sources,
namely (a) The Received English Law, and (b) Indigenous Sources.

2.0 OBJECTIVES
In this unit you are expected to understand fully:
(i) The history and sources of Nigerian law
(ii) To distinguish between Common law and Constitutional law
(iii) To know types of laws
(iv) To be able to know Case laws
(v) To differentiate between Decrees and Acts
(vi) To be able to differentiate the 3 Legislative Lists.

3.0 MAIN CONTENT

3.1 Local Legislation:
The laws made by the Nigerian law making authorities like the Federal and State
Legislatures to a large extent constitute source of Nigerian laws. Considering the
political history and constitutional framework of legislation in Nigeria, Legislations can
be classified as:

40
(1) Ordinances: These were Legislations passed by the various Legislative authorities in
the country during the colonial era prior to October 1, 1954.
(2) Laws: These are enactments made by the legislature of a Region or a state or having
effect as if made by that legislature during a civilian regime. They are often called Laws
of the States.
(3) Acts: These are legislations made or deemed to be made by the Federal Legislature of
a civilian government. They are often called Acts of Parliament.
(4) Decrees: Are laws by the Federal Military Government under the various Military
Governments that the country has witnessed.
(5) Edicts: Are laws made by the various State Governments in a Military dispensation.
Such laws are signed by the Military Governors/Administrators.
(6) Subsidiary Legislations: The Parliament, though charged with the duty of law
making, often finds it difficult to discharge its duty exclusively because it has so much
to do and so little time within which it can be done. This difficulty is overcome by
Parliament delegating its legislative authority to administrative bodies and other
agencies within or outside the executive arm of government. Laws by such bodies and
agencies are referred to as subsidiary or delegated legislations and they are usually
made in form of Rules, Orders, Regulations and Bye-laws.

SELF-ASSESSMENT EXERCISE 3.1

State and explain the various classifications of Legislations.

3.2 The Constitution/Legislative Competence:

In a civilian regime, the Constitution is regarded as the primary law of the land and the
source of all other laws. For instance the Constitution of the Federal Republic of
Nigeria 1979 in Section I as well as 1999, proclaimed its supremacy over all other laws
and provided further that where any other law is inconsistent with the provision of the
Constitution, that law is null and void to the extent of its inconsistency.

The 1979 and 1999 Constitution respectively, also recognized that Nigeria is a
Federation and in that regard, the unique feature relating to division of legislative
powers in a Federal system like ours is contained in these Constitutions. The various
legislative powers are identified and classified under 3 lists.
The lists are:
(i) Exclusive Legislative List: Only the National Assembly can legislate upon matters
contained in this list. Examples of such matters are armed forces, defence, police
affairs, external affairs, currency etc.
(ii) Concurrent Legislative List: Both the National Assembly and State House of
Assembly have competence to legislate on matters contained in this list. Matters here
include Education, Health; Assembly may conflict in respect of the matters contained in
this list. In such a situation, Section 4 (5) of the 1999 constitution provides that the
provisions of the Federal Act shall prevail and the State Law will be null and void to the
extent of its inconsistency with the Federal Act.

41
(iii) Residual List: All other matters that are not mentioned either in the exclusive or
concurrent legislative list fall within the Residual List and are exclusively reserved for
State Assemblies.
Position under the Military
A Military regime is not a democratically elected government within the provisions of
the Constitution. So there is a strong tendency to see such a regime as being
unconstitutional or illegal. Section 1 (2) of the 1999 Constitution by implication
declared Military government an illegal government. However with the coming into
power of any Military regime, the first task they are faced with is suppressing the
supremacy of the Constitution especially the provision that prohibits modernization of
Nigeria by Military Government. They would also make law to legalize the illegal
government.

Therefore, while the Constitution of the Federal Republic of Nigeria is supreme under
civilian regime, however, under Military regime, the Military Decree is supreme.

SELF-ASSESSMENT EXERCISE 3.2

Within the Nigerian context are the various classification of legislative powers adhered
to.

3.3 Case Law/Judicial Precedent:

Judicial Precedent or Case Law refers to the law as derived from the previous decisions
of courts.
The judiciary is traditionally vested with the power to interpret laws made by the
Legislature. But since the pronouncements of courts in cases are regarded as
authoritative, they are binding on the parties to those cases and therefore laws. The
doctrine of Stare decisis- (Let the decision stand) give the concept a wider application
to subsequent cases similar in nature to the issues involved in previously decided cases.

It is not everything said by a judge in the course of his judgment that constitutes a
Precedent. Only the pronouncement on law in relation to the material fact before the
judge constitutes the precedent. A Judicial precedent is therefore, the principle of law
on which a judicial decision is based. It is the Ratio decidendi (i.e. the reason for the
decision).

Therefore, when a court is called upon to apply the decision in a previous case, the
court is expected to follow that part of the previous decision, which represents the ratio
decidendi. This is the portion of the decision based on the actual facts of the case. But
the other parts of the decision, which are not based on the facts of the case, are referred
to as Obiter dictum (i.e things said by the way) meaning those words delivered by a
judge, which are not essential to his decision. They are pronouncements of law on
hypothetical situations; as such they are not binding precedent on a subsequent court.

42
 SELF-ASSESSMENT EXERCISE 3.3
Explain what in the course of judgment constitutes a Precedent.

3.4 English Law:

The English laws which comprises Acts or Orders-in-Council that are applicable
directly to Nigeria are statutes of General Application, the Common Law and doctrine
of equity.
The Received English law is part of our colonial legacy. Following the Berlin
Conference of 1884-1885, which was summoned by the Chancellor of Germany, Otto
von Bismark, Britain was empowered to control the coast from Lagos up to Calabar.
Therefore, prior to the year 1900, laws that were enacted and passed for Britain in the
British Parliament were applicable to Nigeria as a British colony. “With the result that
laws that came into existence at the time Nigeria was not even in contemplation as a
country, still apply to this country up to this day.”

These laws are referred to as Statutes of General Application. Statutes of General

Application, which were in force in England on January 1, 1900, apply in all the states
of the Nigeria Federation except in the states in all defunct Western and Mid-Western
regions.

Therefore, common law and equity remain important parts of Nigerian law, however,
before and since independence, legislations, or statutory enactments have been on the
increase in power and coverage.
SELF-ASSESSMENT EXERCISE 3.4
The Received English law is part of our colonial legacy. Explain.

3.5 OTHER SOURCES OF NIGERIAN LEGAL SYSTEM

1. Customary Laws: These laws must undergo three validity tests
(I) That is not repugnant to natural justice, equity and good conscience.
The following cases are applicable here:
(a) Edet vs Essien(1932) 11 N.L.R.47
(b) Re Effiong Atta(1930) and
(c) Mariyama v. Sadiku EJo(1961) N.R.N.L. R 81

(II) That must not be incompatible either directly or by implication with any law for the
time being in force. In this case see: Taiwo Aoko v. Fademi (1961) 1 ANLR.400,
Adesubokan v. Yinusa (1971).

(III) That must not be contrary to public policy. In this case see: Cole V. Akinyele
(1960) 15 WACA 20.

3.6 International Law

43
 International law, on the other hand, 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.
While individuals or juristic persons are the main subjects of municipal laws,
international law deals primarily with States.

4.0 CONCLUSION
At this juncture, it is important to restate the fact that there is no human society in this
modern age that is not based on law. It must be stated however, that any piece of
legislation or a body of rules and principles that is not enforced is as good as nothing.
What is important about rules is their actual observance/application since they are of
little value if they are not the active instruments used in the regulation of the activities
and behaviours of man in society.

Therefore, to have viable legal system within a defined area, there must be in place
certain ultimate principles from which all orders are derived but which are themselves
self-existent.

5.0 SUMMARY
Nigeria, under British colonial rule, derived legal authority from the Queen in
Parliament. But within the attainment of independence in 1960, and subsequently under
the Republican Constitution of 1963, this umbilical cord was severed and the
Constitution became the basic law for Nigeria. In fact, section 1 of that Constitution
contained the following declaration:
This Constitution shall have the force of law throughout Nigeria, and subject to the
provisions of section 4 of the Constitution (granting Parliament the power to alter the
Constitution) if any other law is inconsistent with this Constitution, this Constitution
shall prevail and the other law shall, to the extent of the inconsistency, be void. Thus,
the bulk of our laws today, are in the form of Statutes. The codification of our criminal
law, exemplified this.

6.0 TUTOR MARKED ASSIGNMENT

(i) What is Judicial Precedent?
(ii) Define English law
(iv) Differentiate the following:
(a)Acts from Laws
(b) Decree from Edicts and Bye-laws from Delegated Legislation

7.0 REFERENCES/FURTHER READINGS

Anozie M. C., (1998) - Notes on Nigerian Constitutional Law, Enugu, Professional

Business Services.

44
 Frank J., (1973) - Courts on Trial, New Jersey, Princeton University Press

Jimmy Chijioke, (1998) - The Eggheads Business and co-operative Law Study
Pack,
Abuja.

John Ohireime Asein, (1998) - Introduction to Nigerian Legal System, Ibadan,

Sam Bookman Publishers.

Okonkwo C.O. ed, (1980) - Introduction to Nigerian Law, London, Sweet and
Maxwell.
Nnanyelugo Okoro and Aloysius – Michaels Okorie, (2004) - Law, Politics
and
Mass Media in Nigeria, Nsukka, Prize Publishers Ltd.

1999 Constitution of the Federal Republic of Nigeria.

45
 MODULE 3
UNIT 1: Nigerian legislation
UNIT 2: The Reasoning behind Legislation
UNIT 3: Legislative Process
UNIT 4: The Rule of Law and Political Governance
UNIT 5: Tools of Social Control via Law

UNIT 1: NIGERIAN LEGISLATION

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Primary Legislation
3.2 Delegated Legislation/Subsidiary Legislation
3.3 Nigerian Customary Law
3.4 Case Laws
3.5 International Law
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
Legislation as a source of law means the law made by the organ of government whose
primary duty is to make law for the State. Therefore, legislation is the product of a
deliberate and formal expression of rules and conduct made by the relevant law-making
authority. It is important that the relevant authority is recognized for the purpose by the
operative political and legal machinery of the State, otherwise the declaration lacks
legality and the force of law. Thus, laws made by the legislature are called “Statutes”.
Nigerian statutes are variously known as Ordinances, Acts, Decrees, Laws and Edicts
depending on when they are enacted.
5.0 OBJECTIVE
In this Unit you should be know the following:-
(i) Different types of legislation.
(ii) That Legislation is a source of law.
(iii) That under the Military regimes, Decrees constitute the supreme laws of the land.
(iv) Local legislation is today the most potent and adaptable of all the sources of Nigerian
law.

6.0 MAIN CONTENT

6.1 Primary and Subsidiary Legislation:
Legislation may be primary or subsidiary legislation, otherwise known as statutes, are
those enacted laws that emanate from the major legislative arm of government. This

46
 may either be the National Assembly, comprising the Senate and House Representatives
or a State House of Assembly, serving the Federal and State Legislative interests
respectively. These Statutes go by the nomenclature Ordinances, Acts, Laws, Decrees
or Edicts, depending on the status and political nature of the enacting authority.
Legislation as a source of law is easily the most important source of law in modern
times, over shadowing other sources of law so much that when we talk of law today we
immediately think of the Statute.
3.2 Delegated Legislation/Subsidiary Legislation:
However, a subsidiary, on the other hand, has been defined as legislation made by a
person or body other than the 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 the statutory power. This form of legislation is inferior to, and may
be repealed directly by, a primary legislation. Regulations, Rules, Orders and By-laws
are some of the subsidiary legislation. Thus, such laws made by the delegate within the
limits of its powers also form part of the primary sources of law in Nigeria, and have
been consolidated in the laws of the Federation of Nigeria since 1990 immediately after
their respective principal Act.

3.3 Nigerian Customary Law:

Nigeria became a truly federal State on October 1, 1959 with the introduction of a
Federal Constitution by the Nigerian Order-in-Council of that year. But prior to the
advent of the colonialist, the various existing communities in Nigeria had their own
system of customary law governing their affairs. Customary law is rules of conduct
accepted by members of a community as binding among them. Nigerian Customary
Law can be classified into ethnic/non-Moslem customary law and Moslem (Islamic
Law). The ethnic customary law is indigenous, unwritten and diverse from one ethnic
group to the other. Moslem law is however, largely written in the Koran and the
practice of the prophets.
Thus, the rules of customary law are subject to tests of validity. Before a customary
law rules is applied by the court, it must have passed the three tests are that the
customary law rule must not be –
(i) Repugnant to natural justice, equity and good conscience;
(ii) Contrary to public policy, and
(iii) Incompatible directly or by implication with
Any rule of customary law that have passed the above tests also form part of the corpus
of the Nigerian Law

3.4 Case Laws:

When a Judge makes a decision in a case he disposes the immediate problem that comes
before him and also lays down a legal principle, which other Judges will have to follow.
When a lower court is confronted with a legal question or issue, the lawyers and Judges
are free to search into the case laws and find a precedent which they can fall back upon

47
 and cite as authority to a court that is lower than the court that delivered that judgment,
where the facts of the case are similar to one that has been decided before.

Thus, judicial precedent is one of the main sources of law in Nigeria. It is a judgment
or decision of a court cited as an authority for the purpose of persuading the court to
decide a similar case on the same principle as the previous one.

3.5 International Law:

International conventions, Treaties and Resolutional bodies such as the United Nations
Organization (UNO), African Union (AU), and International Labour Organization
(ILO) etc. form a secondary source of law in Nigeria. They are however translated into
primary source if the Conventions, Treaties or Resolutions are ratified by Nigeria and
their provisions enacted into our law. Section 12(1) of the 1999 Constitution of our
country makes a provision for the implementation of these treaties after their
domestication/ratified by the legislature.

SELF- ASSESSMENT EXERCISE

Explain the statute that enacted laws emanate from the major legislative arm of
government.

4.0CONCLUSION:
Legislation involves wider participation, which is more easily achieved through the
process of representative democracy in the legislative house. Each of the legislative
houses, at both Federal and State levels, has a broad representative to cater for the
interests of its constituencies. More importantly, the relative ease with which Statutes
are enacted makes this process of law making more endearing than any other does.

5.0SUMMARY:
Legislation has a tremendous effect on the other sources of law. Where the content of
another source of law is in conflict with the provisions of the legislation, that other rule
of law will be null and void to the extent of its inconsistence with that provision of the
legislation. Thus, legislation can and has been used to change the content of other
sources of law by repealing or abrogating them.

6.0TUTOR MARKED ASSIGNMENTS:

(i) Explain what is meant by Legislation and what do you understand by the term,
“Domestication of International Treaties”?
(ii) Where the content of another source of law is in conflict with the provisions of the
legislation, that other rule of law will be null and void. Vividly throw more light on this
statement.

7.0 REFERENCES/FURTHER READING:

48
Akaniro, E. G., (1997) – A study Guide to General Principle of Nigerian Law, Ikeja,
Elcoon Press Ltd.

Dias, R. W. M., (1976) – Jurisprudence, London, Buther wors.

John Ohireime Asein, (1998) – Introduction to Nigerian Legal System, Ibadan, Sam
Bookman Publishers.

Sanni, A. O. ed., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel

Publishing House.

1999 Constitution of the Federal Republic of Nigeria.

49
 UNIT 2: THE REASONING BEHIND LEGISLATION

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Dynamic Nature of the society
3.2 Anti-social Elements
3.3 Paradigm shifts in universal value
3.4 Scientific and Technological Breakthroughs
3.5 Change in Political cum economic ideologies of government
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUTION
Legislations are mostly instigated by the demands and suggestions of the citizens,
interest groups, a community, a private person or government institutions or
departments in form of proposals to the legislature. Thus, the object of this Unit is to
gain insight into the dynamics and legal reasoning behind legislation in our country.

2.0 OBJECTIVES
In this Unit you will be able to understand the following:-
(i) The dynamic and legal reasoning behind legislation.
(ii) That as the society develops and embraces new attitudes, values and ideas, its legal
system automatically makes a paradigm shift as well.
(iii) How laws are mostly instigated by suggestions and proposals of citizens and other
interest groups.

3.0 MAIN CONTENT

3.1 Dynamic Nature of the Society:
The subject of law is about human being and the target of its specification is human
behaviour. Human beings by nature are dynamic; therefore, law must be and is very
dynamic. As the society develops and embraces new attitudes, values and ideas, its
legal system also reacts to bring its law into conformity with the changing attitudes,
values and ideas. Many of our customs have been invalidated on the grounds that they
are incompatible with natural justice, equity and good conscience and in some new
attitude have been enacted into law.

3.2 Anti-social Elements:

Legislations may be made to arrest deplorable, reckless or anti-social behaviours or
practices of the people. Such behaviours may be injurious to the interest of the whole

50
 populace or the image of the country abroad. For instance, in order to curb
unconventional banking practices leading to distress and failures in the Nigerian
banking institutions, the Nigerian government has enacted certain Decrees in order to
arrest and prosecute those indulging in evil dealings against the society.

3.3 Paradigm shifts in Universal Value:

Legislation may be made to embrace global shifts in value systems and incorporate
international standards in certain areas of our domestic law. For example, if there are
new legislation on women’s rights, the rights of children, conservation and preservation
of nature, environment, endangered species of animals, birds and fishes among others,
there must be incorporated into our existing laws through domestication, and our
membership in various international organizations, necessitated this.

3.4 Scientific and Technological Breakthroughs:

Proposals for legislation may be made to cope with the scientific and technological
breakthroughs in order to maintain law and order in the area. The advent of satellite
communications and the use of computers have made access to information throughout
the world easy at the touch of a button. However, the Internet, described as the
information super highway has also brought about a new set of problems, rights, duties
and liabilities, which now necessitate the development of information technology laws.

3.5 Change in Political cum Economic Ideologies of Government:

A change from a Military regime to a civilian regime or vice versa will inevitably
necessitate the abrogation of certain Decrees and Edicts and the promulgation of new
ones to establish a new Legal Order and establish the policies of the government.

SELF- ASSESSMENT EXERCISE

Explain the dynamics and legal reasoning behind legislation in Nigeria

4.0 CONCLUSION
In this Unit we have discussed various aspects of legal reasoning in law. For example,
we discussed about the dynamic nature of the society, anti-social elements, paradigm
shifts in universal value, scientific and technological breakthroughs change in political
cum economic ideologies of government. Hence, the above-mentioned points are the
reasons why new legislations may be made.

5.0 SUMMARY
Apart from the above factors, legislation may be made on a matter at the instance of a
government ministry, corporate body, a legislator or a private citizen. Communities
may also call for legislation on matters affecting them, for instance, the clamour by the
populace that they, are subjected to unfair and illegitimate multiple taxations may lead
the government to ensure that its tax system has a human-face.

51
6.0 TUTOR MARKED ASSIGNMENT
Various circumstances necessitate the reasoning behind legislation. Discuss the
circumstances.

7.0 REFERENCES/FURTHER READING

Dias, R. W. M., (1976) – Jurisprudence, London, Butter Wors.

Sanni, A. O. ed., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel

Publishing House.

Hall, J., (1960) – General Principles of Criminal Law, Indianapolis, Bobbs Publication.

52
 UNIT 3: THE LEGISLATIVE PROCESS
CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Money Bills
3.2 Ordinary Bills
3.3 The Legislative Process under the Military
3.4 Types of Legislation
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings.

1.0 INTRODUCTION
The primary purpose in this Unit is to examine the process by which laws are made in
both legislative houses. This is contained in Sections 58 and 100 of the 1999
Constitution, respectively. A special procedure is required under section 59 for money
bills. Although these sections of the Constitution have been suspended by the
Constitution (Suspension and Modification) decree of 1993. The legislative powers of
the Federation are vested in the National Assembly, consisting of a Senate and a House
of Representative, while those of the State are vested in their respective House of
Assembly. The National Assembly is conferred with the powers to make laws for the
peace, order and good government of the Federation or any part thereof. These powers
covered all matters in the exclusive legislative list set out in part 1 of the Second
Schedule to the Constitution and also those matters in the concurrent legislative list, to
the extent prescribed therein.

The House of Assembly of a State has also powers to make laws for peace, order and
good government of the State or any part thereof with respect to residual matters and
matters in the concurrent legislative list, to the extent prescribed therein.

However, for a bill to become law, it must be passed by a simple majority of the
members present and voting in the House where it originated after which it is sent to the
other House where it originated after which it is sent to the other House to go through a
similar procedure. The same procedural steps equally follow in both the National and
State Houses of Assemblies.

2.0 OBJECTIVES
In this Unit you will learn the following:
(i) How a bill becomes law.
(ii) The difference between Money Bills under the Civilian regime and under the
Military, respectively.

53
3.0 MAIN CONTENT
3.1 Money Bills:
Some special procedure is provided for, under Section 59 of the 1999 Constitution,
where the bill in question is a money bill. A money bill is defined as:
(i) An appropriation bill or a supplementary appropriate bill including any other bill
for payment, issue or withdrawal from the consolidated Revenue Fund or any
other public fund of the Federation of Nigeria.
(ii) A bill for the imposition of or increase in any tax, duty or fee or any reduction,
withdrawal or cancellation thereof.
Ordinarily, a money bill goes through the same process as any ordinary bill. However,
where a money bill is passed by one of the Houses of the National Assembly but is not
passed by the other House within a period of two months from the commencement of a
financial year, the President of the Senate shall within 14 days thereafter arrange for and
convene a meeting of the Joint Finance Committee to examine the bill, and shall be
presented to the National Assembly sitting at a joint meeting to the President for assent.

3.2 Ordinary Bills

An Act of the National Assembly commences as a bill and may be introduced in the
Senate or House of Representatives. A bill may either be a private bill introduced by a
private member of any of the legislative bodies and intended to benefit the limited
interest of a section of the society or it may be a public bill affecting the interest of the
public at large. The Chairman of the appropriate standing committee or an ordinary
member of the House as a private member may introduce a bill.

3.3 The Legislative Process under the Military:

Considering the frequency of Military intervention in Nigeria Politics and hence the
legal system, it is important to mention the peculiar nature of Military legislation and
the legislative process.

One characteristics feature of all the Military administrations Nigeria has had, was the
arrogation of ultimate power to themselves. Unlike civilian a government, which has
elected representatives from different constituencies, derive their legislative authority
from the Constitution, which is the Supreme law of the land. Sadly enough, Military
regimes, in fact, subdued the Constitution. The Military assumed the power to amend
or suspend all or any part of the constitution by Decree. A case in point was the
Suspension and Modification of 1979 Constitution.

Therefore, in a civilian government, the principle of separation of powers is entrenched,

but Military regimes have a tendency to exhibit an incomplete separation between
executive and legislative functions. In the same token, the rules of Federalism were
hardly obeyed as the demarcation between Federal and State Powers was very thin and
the central government had the ultimate powers to legislate on all matters.

54
3.4 Types of Legislation:
The following types of legislation can be identified:
(i) Public General Act:- which applies to everyone and everywhere within the
State. Examples of such legislation include the Criminal Code or the Penal Code.
(ii) Local Act:- which applies to a particular locality or community. For example, a
law made to combat environmental or ecological problems in the Niger Delta
area or a law establishing a particular University.
(iii) Private Act:- This is even more restricted in its scope and application. A
Private Act is one made in respect of a particular person or body of person
including individual, local authorities and statutory bodies. For example, a
Statute granting a State pardon, to a convicted person or reverting certain
properties earlier confiscated back to him.
(iv) Consolidating Act:- This is a new statute passed which re-enacts the content of
earlier Statute with such modifications and additions as are necessary to produce
a coherent whole.
(v) A Code:- This is a Statute which attempts to put together in one document the
provisions of the existing legislation, the principles of common law and doctrines
of equity which have over a period of time on a particular subject. Examples
include the Criminal Code, Penal Code and The Companies and Allied Matters
Decree, No.1, 1990.
4.0 CONCLUSION
Where laws are enacted in the legislature such as the National Assembly or a State
House of Assembly, which are made up of the elected representatives of the people, the
law has to be passed according to the prescribed legislative procedure. It is therefore
essential to conclude that on the legislative process that much time and resources,
human and material, are expended in the course of enacting a Statute. The legislature
would have considered all apparent loopholes and sought to resolve any uncertainty in
order to ensure that the law, when finally passed, is clear and certain and that it is, as
much as possible, devoid of all ambiguities.

5.0 SUMMARY
Unfortunately, the impact of the incessant interventions of the Military in Nigeria’s
political development has left an indelible mark on its legal system. Nevertheless, the
repeated dismantling of governmental structures, it is commendable though that the
Constitution has always stood the test of time. The legislatures have been working.
People are now witnessing and enjoying the dividends of Civilian Government. Laws
are now made and passed by people’s representatives at the Federal and State level.

SELF-ASSESSMENT EXERCISE
Explain extensively the various types of legislation.

6.0 TUTOR-MARKED ASSIGNMENT

55
(i) Define Money Bill.
(ii) What is Consolidated Revenue Fund?

7.0 REFERENCES/FURTHER READINGS

Dennis Lloyd, (1979) – The Idea of Law, England, Penguin Books.

John Ohireime Asein, (1998) – Introduction to Nigeria Legal System, Ibadan, Sam
Bookman Publishers.
Nnanyelugo Okoro and Aloysius – Michael Okolie, (2004) – Law, Politics and Mass
Media in Nigeria, Nsukka, Prize Publishers Ltd.

Okonkwo C. O. ed., (1980) – Introduction to Nigerian Law, London, Sweet and

Maxwell.

Sanni, A. O. ed., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel

Publishing House.

56
 UNIT 4: THE RULE OF LAW AND POLITICAL GOVERNANCE

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Meaning of Rule of Law
3.2 Political Governance
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignments
7.0 References/Further Reading

1.0 INTRODUCTION
The rule of law is one of the cardinal ingredients of political or democratic governance.
Political governance largely refers to the rule by the people, either directly or through
representatives. Political governance or democratic rule assumes the value and the
fundamental quality of all individuals. Its main principles are liberty and equality for
all citizens.

For democratic governance to be in place, sustained and consolidated, the rule of law
must subsist and in fact forms the foundation of the former. In this regard and
arrangement, the people are actually equal before the law, are subject to the rule of law,
have liberty and equal opportunities, and uniform stake in the polity.

2.0 OBJECTIVES
In this Unit you will be able to understand the following:-
(i) The extent to which the rule of law prevails and subsists in Nigeria.
(ii) The rule of law and its basic elements.
(iii) Political governance standards.
3.0 MAIN CONTENT
3.1 Meaning of the Rule of Law:
Rule of Law is a constitutional doctrine, which emphasizes the supremacy of the law as
administered by the law courts. Literally, the rule of law means the governance of law.
That is to say that the entire society including democratic institutions, organs of
government and the civil society must be subject to legal rules.

It demands that all actions of government officials and the citizenry be justified in law.
Thus the law is supreme and all must be subordinated to it. One important point to note
is that the idea of the rule of law emanates from man’s conceptions of the nature of man
itself. Man has innate distrust of his fellow man, especially when vested with power.
Man by nature is seen as expansive, domineering, atavistic, and governed by the

57
 principle of cupiditas and lubido dominandi. Hence, when vested with absolute power,
man has the tendency of subordinating, exploiting and suppressing one another.
Remember that power corrupts absolute power corrupts absolutely. Thus, the only
mechanism available to check and curtail the excesses of man within the ambit of the
law and social harmony is the rule of law.
However, Dicey (1959) is typical of those who conceive the rule of law as a legal
control of the executive arm of government. He opined that the rule of law is distinct
but related meanings.

It means the absolute supremacy or predominance of regular law as opposed to the

influence of arbitrary power and excludes the existence of arbitrariness, of prerogative,
or even of wide discretionary authority on the part of the government. The rule of law
means not only that with us, no man is above the law, but that here every man, whatever
be his rank or condition, is subject to the ordinary law of the realm and amenable to the
jurisdiction of the ordinary tribunals.
Therefore, from the above expressed views, Ewelukwa, (1997), summarized that the
concept meant “not only to safeguard and advance the civil and political rights of the
individuals in a free society, but also to establish social, economic, educational and
cultural conditions under which his legitimate aspirations and dignity may be realized”.

3.2 Political Governance:

In its most general sense, democracy connotes a society in which each individual
member is believed to entitle to equality of concern or opportunity. Meanwhile, the
term political democracy means more than mere forms of government, especially
because there is evidence of increasing lip service paid to democratic forms without
practice of the substance of political democracy. It is concerned with those institutions
and practices considered necessary to secure the principles of popular participation as
governance, equality and equalization of political and economic opportunities. The
Nigerian political leadership is presently saddled with the onerous task of instituting
political democracy that will guarantee economic freedom and enhance societal well-
being and popular participation in governance.

Nigeria has signed several International Codes and Standards on democracy and
political governance, but they have not all been ratified and reflected in Nigerian laws
and are thus not being implemented. One reason for this is that no proper records are
kept of all the standards and codes that Nigeria has signed with a view to their being
ratified. Another is the delay caused by the slow process of passing a bill in the
National Assembly when one is submitted for ratification of a Standard or Code. Also,
Nigeria’s federal structure and the rigid procedures for amending the Constitution
makes it difficult to ratify some Standards and Code.

To correct the situation and ensure that outstanding Standards and Code are ratified in
March 2001, the Government established a Committee on the Ratification of

58
Outstanding Treaties, Conventions, Protocols and Agreements entered into by Nigeria
with other countries and international organizations. The Committee recommended
steps to take in quickening ratification of Standards and Codes.

4.0 CONCLUSION:
In this Unit we have vividly discussed the rule of law, its meaning from different
perspectives. We also discussed political governance in relation to the rule of law. We
also touched up the imperativeness of the rule of law in any given society. Thus, it is
apt to conclude that the rule of law remains basically a mirage as the independence of
the judiciary becomes a heavily eroded and vitiated.

5.0 SUMMARY
For Nigeria to consolidate the gains therein in democratization process and hence
accumulates substantial democratic residues in its broadest senses, the principles of rule
of law must be appreciated, respected and sustained by the political leadership. This
among others will guarantee political freedom and political equality as well as
economic freedom and economic equality.

SELF-ASSESSMENT EXERCISE
There is increasing lip service paid to political democracy democratic practice in
Nigeria. Explain.

6.0 TUTOR MARKED ASSIGNMENT

For democratic governance to be in place, sustained and consolidated, the rule of law
must subsist. Discuss.

7.0 REFERENCES/FURTHER READING

Ese Malemi, (1999) – Outline of Nigerian Legal System, Lagos, Grace
Publishers Inc.

Nnanyelugo Okoro and Aloysius Michael Okolie, (2004) – Law, Politics and Media
in Nigeria, Nsukka, Prize Publishers Ltd.

APRM Country Self-Assessment Report (CSAR) – Executive Summary – NEPAD

Nigeria, 2008.

59
UNIT 5: TOOLS OF SOCIAL CONTROL VIA LAW

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 What is social control?
3.2 Techniques or Tools of Social Control
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1. INTRODUCTION
The divergence view within the legal–philosophers about the meaning of law
notwithstanding, it is unanimously agreed by all that law is an instrument of social
control, helping to maintain social order in a number of ways.

2.0 OBJECTIVES
In this Unit you are expected to know the following:-
(i) The meaning of social control.
(ii) The techniques of social control through law.
(iii) That there are similarities and differences between the different techniques, etc.
(iv) That Law is not the only instrument of social control.

3.0 MAIN CONTENT

3.1 What is Social Control?
Social control is the control of social behaviour that is, behaviour that affects others.
The 1999 Constitution of Nigeria has provisions for the exercise of rights as well as
duties for its citizens. For instance, a person has the right to decide whether or not to
work under certain conditions. If he chooses not to work, he cannot be forced by law to
do so against his will. This is because nobody except perhaps himself and members of
his household, are likely to suffer for his decision. Therefore, Mr. A’s decision to work
and where to work to a large extent is not socially controlled, at least directly.
However, if Mr. A, driven by inordinate ambition attempts to steal the food or money of
Mr. B, it then becomes the concern of the society to control his act or tendencies in the
overall interests of the society.
3.2 Techniques or Tools of Social Control:
There are seven main techniques used in modern law, and these are:-
(I) The Penal Technique:
When a person is alleged to have committed a crime, the victim instead of resorting to
vengeance or self-help reports the matter to the police. The police who will decide

60
whether or not to prosecute depending on the available evidence will then investigate
the matter. In case the police decide to prosecute, the suspect is arraigned in the court
where he will be given the opportunity to defend himself (fair learning).

However, if the prosecution succeeds in proving the guilt of the suspect beyond
reasonable shadow of doubt, the offence depending on the nature, may attract the
punishment of fine and or imprisonment or even death sentence, which is a form of
elimination from the society. Thus, the aim of the Penal technique is to curb deviant
behaviours in the face of the increasing wave of crime in the country ranging from petty
stealing, assassination, robbery, advance fee fraud (419), bribery, corruption, electoral
offences, drug pushing, etc.

(II) The Grievance – Remedial Technique:

While the penal technique involves matters relating to public order or criminal law, the
grievance remedial technique is applicable mainly in the area of civil law. The
technique establishes some substantive rules, principles and standards, which create
legal rights and duties, and defines the proper remedies in case of breach. It also
provides for the enforcement of the rights and duties through the law court.

The remedies available to an aggrieved person are multifarious depending on the nature
of the right that is breached and the circumstances of each case. Thus, the logical basis
of this technique is that if adequate remedy is granted to the aggrieved person he is
likely to be genuinely pacified and in this way the law would have succeeded in
discouraging injustice or dissuading aggrieved people from taking law into their hands.

(III) The Public Benefit Conferral Technique:

This technique is aimed at ensuring the upliftment of the welfare of the members of the
society in the expectation that this will in the final analysis bring about order and peace.

This technique appears to be effectively used by the developing countries because they
are always seeking to create more conveniences for their people. It is a known fact that
the government of United States of America can send an Aeroplane to salvage the life
of a single American who is trapped in another country in an emergency situation. In
Nigeria, many programmes have been introduced at different times in different sectors
of the economy aimed at alleviating the plight of the poor and underprivileged.

(iv) The Constitutive Technique:

This technique fosters social order by facilitating the pooling of efforts and resources
together among a group or groups of people to achieve certain desirable social ends
such as promotion of commerce, charitable, social and cultural objectives.

(v) Administrative Regulatory Technique:

61
Under this technique, government agencies adopt regulatory standards; communicate
them to private operators and takes steps to ensure compliance. The steps will usually
include system of licensing, inspection, writing warning letters or revocation of license
before the bringing of administrative proceedings, civil litigation or a criminal
prosecution when necessary as the last resort.

( vi) Fiscal Technique:

Fiscal technique has been used in the modern times to discourage certain anti-social
behaviours and thereby helping to bring about a measure of social order. Also, some
taxes have been used ostensibly to redistribute income and bridge the widening social
gap between the “haves” and the “have nots” in the country. Such taxes include the
income tax and capital transfer tax. But the latter was abolished in 1997.

(vii) The Private Arranging Technique:

This technique operates in the area of civil law. What the private arranging technique
does is for the law to provide a framework of rules, which will determine the validity of
private transactions and then leave the individual with the option of arranging his
private affairs the way he likes within the framework of the law. Two quintessence of
private arranging are marriage and the making of Will. Marriage under the Marriage
Act or in the Registry or under the custom or a combination of any two or all of the
options.

4.0 CONCLUSION
In this Unit we have discussed various aspects of social control through law. Although
there seems to be some ineffective in some of the techniques employed, yet it is quite
likely that there is no viable option to it in controlling deviant behaviours in the society.

5.0 SUMMARY
We can rightly sum up that there are keen similarities and overlap between the different
techniques, while the differences between each of the techniques should always be kept
in mind. It is possible for the law to use more than one technique to achieve a particular
objective. When legislation is being considered, the government must choose which
technique or combination of techniques will best achieve its legislative purpose.
SELF-ASSESSMENT EXERCISE
Explain the techniques used in Social Control in modern law.

6.0 TUTOR MARKED ASSIGNMENT

What is social control and what techniques can be applied to bring about effective
social control in our society?

62
7.0 REFERENCES/FURTHER READING
Okonkwo, C. O. ed., (1980) – Introduction to Nigerian Law, London, Sweet and
Maxwell.
Sanni, A. O., ed., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel
Publishing House.
Saith, E. M., (1938) – Political Institution, New York, D. Appleton Century.

Wade, H. W. R., (1971) – Administrative Law, Oxford, Oxford University Press.

Constitution of the Federal Republic of Nigeria, 1999.

63
 MODULE 4
Unit 1: Interpretation of Statues
Unit 2: Justice and Rights
Unit 3: Grounds for Criminal Liability And Punishment
Unit 4: Recklessness, Negligence and Mens Rea
Unit 5: The Legal Profession in Nigeria.

Unit 1: INTERPRETATION OF STATUES

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content.
3.1 Canons of Interpretation
3.2 Why Statues generate Arguments?
3.5 Interpretation of the Constitution
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References / Further Reading

1.0 INTRODUCTION
In English law, the principal sources of legal rules are status and precedents (the case
law). Whereas precedence is guidance by example, statutes are guidance by precept.
Statutes generally come in a clear set of words. The principle of parliamentary draft is
certainty, thus statutes are to be as certain as possible. After all, law ought to be certain.
The Supreme Court in Awolowo Vs Shagari laid down the following principles
for the interpretation of statutes, in the following words:

A statute should always be looked at as a whole

Words used in a statute are to be read according to their meaning as popularly
understood at the time the statutes became law, a statute is presumed not to alter
existing law beyond that necessarily required by the statute. It is necessary to emphasize
that a decision on the interpretation of one statute generally cannot constitute a binding
precedent with regard to the interpretation of another. The concept of legal reasoning
through judicial process as best explained in this unit. The power to interpret statutes is
a constitutional right vested in the courts by section b of the 1999 constitution.

2.0 OBJECTIVES
In this unit, you will be able to know the following:
i. The meaning of statutes
ii. The importance of statutes
iii. The arguments behind statutes

64
iv. Canons of interpretation
v. Interpretation of the Constitution, etc.
3.0 MAIN CONTENT
3.1 Canons of interpretation
There are three main canons of interpretation of statutes. They are:
i. The literary rule,
ii. The mischief rule, and
iii. The golden rule
i. The Literary Rule:-
This is also referred to as the ordinary rule, the primary rule or the plain rule. This
canon of interpretation is the first and most commonly used. It is the most important of
statutes. It states that where the words used are clear and unambiguous the courts
should apply the ordinary meaning of the words as used in reaching a decision. In
William V. Akintude, the learned justice of the then Court of Appeal, How Justice Pats
Acholomu, agrees that: In determining either the general object of the legislation or the
meaning of its language in any particular passage, it is obvious that the intention which
appears to be most in accord with convenience, reason, justice, and legal principles
should in all cases of doubtful significance be presumed to be the true one.
Justifying the dictum above, His Lordship observed that expedience and
prudence will help in understanding the character of an enactment. The Courts are not
to defeat the plain meaning of an enactment by introducing their own words into the
enactment as was wrongly done in Okumagba V. Egbe. Even when words are used in
the technical sense, it must be construed in its ordinary technical sense. For example,
“call to bar” or “bar and bench”. These words have acquired technical meanings and
shall be interpreted in their ordinary technical meanings.
In the popular case of Akintola Vs Adegbenro, the Privy Council applying the
ordinary meaning of S. 33 (10) of the constitution of Western Nigeria echoed that where
the words are dear and unambiguous the literal interpretation must be adopted.
ii. The mischief Rule
In the course of interpretation of statutes judges express their own opinions as to social
policy and these opinions do not always command universal assent. If by any chance
the literary rule or interpretation leads to ambiguity, then the intention of the parliament
must be sought. This bids the judges to look at the law as it was before the Act being
interpreted and the mischief which statute was intended to remedy. The Act is then
construed to suppress the mischief and advance the remedy. The Heydon’s case has
been described as the root or origin of the mischief rule. The aim of the mischief rule is
to ascertain how and why the statute being construed to have cured the defect in the
common law or previous statute. This is done by following a logical order prescribed in
the Heydon’s case, that is to say:
i. What was the common law or statute law before the Act being construed was passed?
ii. What was the mischief or defect for which the common law or statute did not provide?
iii. What remedy has the legislation resolved and appointed to cure?
iv. What was the true reason or the remedy?

65
The court after due consideration of the above proposition is duty bound to make such
construction as shall suppress the mischief and advance the remedy. In Ibekwe V.
Machuka, Justice Mohammed quoting Akpata JCA in Adeleji V. National Bank of
Nigeria Ltd, expressed the attitude of courts as follows:
In pursuance of the principles that law should serve public interest, the courts have
evolved the technique of construction in bonam partein. One of the principles evolved
from such construction in the interpretation of statutes is that no one should be allowed
to benefit from his own wrong. The effect is usually that the literal meaning of the
enactment is departed from where it would result in wrongful self-benefit.
Aniagolu JSC cited with approval the principles in Heydon’s case (Supra) in Ifezue V.
Mbadugha, when he said;
To properly ascertain the mischief aimed at by legislation, it is sometimes helpful to
look into the history of the legislation. In construing a statutory provision, which is
ambiguous, preference should be given to the view, which would not lead to public
mischief.
Therefore, the practical utility of the mischief rule depends to some extent upon the
means, which the courts are entitled to employ in order to ascertain the mischief, which
was intended to remedy. Such exploration will require a true historical investigation,
press agitation, party conferences, government pronouncements and debates. In
applying the mischief rule, the judiciary must not invent fancied ambiguities.
iii. The Golden Rule:
At times in the interpretation of the literal rule the intention of the legislators cannot be
reached. The literal interpretation here leads to absurdity. The courts in such situations
allow themselves to construe a statute in such a way as to produce a reasonable result
even though this involves departing from the prima facie meaning of the words.
Generally, an interpretation to avoid absurdity is called the golden rule.
In Bronik Motors Ltd., V. Wema Bank Ltd, Idigbe. JSC considering the jurisdiction
of the Lagos High Court under S.230, his Lordship said that,
Words in an enactment are used in their ordinary and primary meaning or in their
common or popular sense in which they would have been understood the day after
unless such interpretation or construction would lead to mischief absurdity. Therefore,
through this rule, an inapplicable statute becomes applicable by removing the character
of absurdity from the contents of the statute
3.2 Why Statutes Generate Arguments?
H.L.A. Hart has hinted that rules generate fresh looking in the face of application. This
is precisely because, drafters are not very aware of the full range of factual situations
where the rule will apply, yet the rule’s auto-application must be set.
There is relevant indeterminacy of aim. We are not quite sure what we want to do in
certain circumstances; hence we may be in the state of relative ignorance of fact and
indeterminacy of aim. Human language, for necessarily ambiguous. English language,
for example, is not an instrument of mathematical precision. Yet the draftsman will seek
precision even though language does not admit of it. Thus, there is an intrinsic
indeterminacy of language. However, the context of a case gives us a clue on what to

66
 do. But a statute is frequently stripped of its context. Until very recently, contexts of
statutes were forbidden.

Therefore, one of the qualities of good law is clarity. The English legislative mind is
rather very detailed in drafting statutes, for law is ordinarily designed so that folks
would know what to expect. Statutes need to be interpreted, hence Legisprudence of the
jurisprudence or interpretation statutes.

3.3 Interpretation of the Constitution:-

It is also the primary duty of the court to interpret the constitution in doing this onerous
task, along the same line of interpreting. Statutes, the courts should not allow mere
technical rules of interpretation to defeat the principles of government entrenched
therein. In Bronik Motors, ltd. V. Wema Bank ltd (Spra), it was clearly stated “the
constitution is a living document (not just a statute) providing a frame work for the
governance of a country not only for now but for generations yet unborn. In construing
it, undue regard should not be paid to merely technical rules, for otherwise the objects
of its framers would be frustrated. However, whenever the issue of wide or narrow
interpretation should be favoured, the court as much as possible should adopt the wide
interpretation, unless such approach will work obvious hardship. In the main, the courts
should be liberal in the interpretation of the constitution.

In Rabise V. State, the court was reminded to always bear in mind that the constitution
itself is a mechanism under which laws are to be made by the legislature and not merely
as an Act, which declares what the law is.
The court must not be oblivious of the history of the constitution, the law and the
legislations. The sections of the constitution must be read as a whole and the provisions
of related sections read together. The Supreme Court in Attorney General of Bendel
state V. Attorney General of the Federation laid down the principles, which the court
must bear in mind while interpreting the constitution as follows:
i. Effect should be given to every word.
ii. A Construction nullifying a specific clause will not be given to the constitution unless
absolutely required by the context.
iii. A constitutional power cannot be used by way of construction to attain unconstitutional
result.
iv. The Constitution of the Federal Republic of Nigeria is an organic scheme of
government to be dealt within it’s entirely, a particular provision cannot be severed
from the rest of the Constitution.
v. While the language of the Constitution does not change, the changing circumstances of
a progressive society for which it is designed to yield new and fuller import to its
meaning.
vi. A constitutional provision should not be construed so as to defeat its evident purpose.

SELF-ASSESSMENT EXERCISE

67
 Explain your understanding of the interpretation of the Constitution. Why are Statutes
generating arguments?

4.0 CONCLUSION
When the legislature makes the law, they intend that it will bring order, peace and
justice in the society. Unfortunately when these legislations are enacted, they carry with
them that characteristic human imperfect quality. This causes some of the legislations to
carry on the face of it certain meaning not originally intended by the legislature. It is in
the cause of interpretation of statutes that judges dissent in opinion, or superior courts
disagree with the decisions of the lower courts, or courts over-rule or distinguish earlier
decisions or even litigants go on appeal.

5.0 SUMMARY
The law, it is said, must be certain. Again, one need to balance the concepts of certainty
and justice. The more certain the law is, the less just it seems to become, if we make our
law absolutely certain, the narrower it applies. But if qualifications are introduced into
law, it becomes less certain. Therefore, legal justice is dealing with a case in its
individuality. Hence, individualized judgment is a particular application of justice. But
the more one does this, the more one moves away from treating like cases alike.

6.0 TUTOR MARKED ASSIGNMENT

i. The best interpretation of law is that law is an interpretative practice. Discuss.
ii. Should judges try to interpret statutes in a way that is faithful to the intention of the
legislator?
iii. List the three main canons of interpretation.

7.0 REFERENCE / FURTHER READING

Akintunde, A.K.R., (1960) The Nigerian legal system, Owerri, Spectrum Law
Publishing.

Ese Melami, (1999) Outline of Nigerian Legal System, Lagos, Grace Publishers Inc.

Njoku Francis, O.C., (2007) Studies In Jurisprudence – A Fundamental Approach to the

Philosophy of law, Owerri, Claretian Theologate.

Unabue U.S.F., (2004) Law and Legal Process, Abuja, Global Press Ltd.

68
69
 Unit 2: JUSTICE AND RIGHTS

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content.
3.1 Plato’s search for justice as the Soul of the State
3.2 Aristotle’s views of Justice
3.3 Aquina’s Views of Justice
3.4 Hume’s Views of Justice
3.5 What does a common man say then about legal justice?
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/ Further Reading.

INTRODUCTION:
Everyone talks about justice, hence statements of this type – it is just, ‘it is right, and so
on are appealed to a certain standard, whether or not, it is agreeable that such a standard
has to be conceived in natural or conventional terms. The point is that justice forms part
of a family of moral concepts, connected with law and politics. And people usually talk
of distribution as being ‘right’ when they can at the same time say that it is just. But
what is this thing called Justice? Philosophers and jurists have explained it differently.

2.0 OBJECTIVES
In this unit, you will be able to understand the following:
i. Philosophers and Jurists respective views of justice and rights.
ii. Whether justice is equally fairness or not.
iii. Whether a theory of justice ever be politically neutral.
iv. The common man’s views of justice, etc.

3.0 MAIN CONTENT

3.1 Plato viewed justice as the Soul of the state. The great ancient philosopher-Plato,
did not think that the identification of justice was easy. Whatever it was, he did not
accept the idea that it could be identified, in his geogias, with ‘Superman morality’
proposed by Callicles, for to do justice is worse than to suffer it. Callicles does not
accept Socrates’ view either, for he believes that it is moralizing to say that to do
injustice is worse than to suffer it since this position bespeaks an appeal to a kind of
herd morality that which one can grab for oneself according to Callicles, is just, hence
“might is tight”, moreover it gives he who has might pleasure to attain his end. In this
regard, what is pleasurable is good, and what is good is what one obtains by might, and
that is right, that which is right is just, according to Callicles. But Socrates ridicules this
view, and Callicles was led to admit that pleasure was subordinate to the good.

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In the Republic, Plato sets out to determine the nature of justice. In book one, Socrates
his interlocutors could not determine what it is or what kind of virtue it is, hence
Socrates confessed his lack of knowledge of it. Agreed on the discussion however, that
there is a justice for one person, Socrates suggests, in Book Two of the Republic that if
they consider the state, then justice will be more discernible. It implies obviously that
the state and the individual have the same principles of justice, neither can be
emancipated from the code of eternal justice.

For Plato, there is need for a particular organization of the state for one to see clearly
what justice is. He liked a small territory for the city, but its enlargement will ask for
more hands in various spheres. Plato was of the view that as the city enlarges, needs for
musicians, poets, tutors, nurses, doctors, and so on will arise, and land will no longer be
sufficient. War will arise for people will interfere with one another’s property and
neigbours might intrude. Thus, there will emerge the guardian of the state, who, at first,
represents the vigorous and powerful men who will repel invaders and preserve internal
order. They must be spirited, gifted and courageous Plato has found craftsmen and
guardians, but who are to be the rulers. They are the best of all, powerful and
intelligent, carefully selected from the guardians. Plato is to correlate functions in the
state with a certain Psychology.

Book four of the Republic, especially, gives the doctrine of the tripartite nature of the
soul. There are three parts to the soul, the rational, the courageous/spirited, and the
appetitive parts. The rational part is the highest element. The other parts are perishable.
The spirited part is nobler and in humans it is akin to moral courage. The appetitive part
refers to bodily desires. Plato in Phaedmis made a comparison in which the rational
element is likened to a charioteer and the spirited and appetitive elements to two horses.
Here one sees Plato’s ethical interest in insisting on the right of the rational elements to
rule, to act as the Chariotee. It keeps order in the various surgings of the passions of
humans.

Functions in the State:

To Plato, functions in the state were likened to the division of the nature of the soul.
There is justice when all the parts of the soul are harmonized. The wisdom of the state
in the auxiliaries, and the temperance of the state consist in subordination of the ruled to
the ruler. Thus, justice in the state is that one does that one is suited for without
interfering in the Business of the other class. This will avoid confusion in the state, for
Plato was disillusioned when some kind of new breed of politicians or soldiers took
over power which ended in the execution of a just man-Socrates, an experience that
made Plato to turn his back against active political life. Therefore, Plato’s treatment of
justice was some kind of distributive concept of justice.

3.2 Aristotle Views on Justice

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Aristotle saw justice as essential in the Arts of Human Affairs. It was his belief that
every activity tends towards something, that is, an end or goal, which coincides with the
good sought in the activity or inquiry. There are numerous activities, hence implying
many ends, which are later subordinated to others as means to other ends. However, the
chains of activities and their ends cannot continue ad infinitum. That is, we cannot
desire indefinitely, there must be an end which terminates the series of means and
subordinate ends of action- i.e. some object of desire, some object to be attained by
action, which is ultimate to us, or which is intrinsically desirable. There must be,
according to Aristotle, a good sought for itself, which human beings characteristically
aim, and this he called eudaimonia.

Eudemonia, meaning “human flourishing” or well-being, good for man, complete and
“always in itself and never for the sake of something else”. The art that seeks
eudaimonia is not an exact science, it needs experience and discipline of the passions to
be desired aright. The subjects and properties of the mathematical sciences are easy to
define, but not sphere of politics. The sphere of politics is human affairs – human action
as judges’ noble or baise, fair or unfair, just and defined within human affairs. The
particular virtue that is needed to make sure that action and relationships are fairly
pursued in the same virtue that founds human affairs.

The virtues are the means of human rationality in the pursuit of the good for man, and
the lack of which will frustrate one’s movement towards the telos. They come as a
result of habit, and are merely means to well-being.
In talking about justice, Aristotle began by stating what was commonly held by people
to be Justice and injustice as that “kind of state of character which makes people
disposed to do what is just and makes them act justly and wish for what is just, and
similarly by injustice that state which makes them act unjustly and wish for what is
unjust. Justice is the rightness of act in relation to an extrinsic end, and it has a certain
character of good and praiseworthy, especially when considered in relation to others.
Thus, justice is a means between acting unjustly and being unjustly treated.

Aristotle used the word ‘just’ in two senses, namely: what is lawful and what is fair and
equal in social transactions. The former is universal justice which is equivalent to
obedience to law, and he believed that the law-abiding man is just and the lawless
person unjust and unfair.
Justice then is a social virtue that secures a good that concerns both the agent and his
neighbours. It is a virtue that takes its bearing from the good of the neigbours.

Justice is divided into distributive and remedial justice.

The just in distributive justice, according to Aristotle, is a species of proportionality, for
the proportion is equally of ratios, the unjust being what violates the geometrical ratio.
Remedial justice is subdivided into two: One dealing with voluntary transactions and
the other with involuntary transactions. Remedial justice proceeds with arithmetical

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progression, treats the parts equally, thus “corrective justice will be the intermediate
between loss and gain” On the whole, justice as a virtue and state of character in its
inner nature is a voluntary action chosen with knowledge. Thus, to maintain socio-
political well-being, one must constantly desire and choose to do justice.

3.3 Aquina’s View on Justice:

According to Aquina, justice is a matter within intercourse between humans. Thomas
Aquinas made even clear his master’s point. For Aquinas, the proper matter of justice
“Consist of those things that belong to our intercourse with other men”, hence justice is
rendering the other his due or right. This rendering of the other his due, for it to qualify
as virtue, must be done knowingly, consciously or voluntarily and with choice and done
on permanent basis, which indicates firmness in the act and disposition. One who does
what he ought to do does not by that bring gain to the person who receives that act, for
he has simply abstained from doing harm, ( a harm which will have to be remedied or
corrected in order to restore the equilibrium), but “he does however profit himself in so
far as he does what he ought spontaneously and readily, and this is to act virtuously.

Therefore, to Aquinas, justice implies equity towards the other. It is in the fact that
justice regulates human acts that it is a virtue. He agreed with Aristotle that the virtue of
a good citizen is general justice “whereby a man is directed to the common good”. The
justice that directs to the common good is general, that is, legal justice, and that which
simply regulates the relation of the individual and to the other is particular justice,
directing a man immediately to the good of another individual.

3.4 David Hume’s Views on Justice

According to David Hume, Justice is an artificial but necessary virtue. Hume said that
the disposition to grant others their due is not a natural one because people are naturally
determined by their passions to be partial to themselves. This understanding excludes
the argument that honesty or justice is motivated by a natural instinct or that it is
derived from some general virtuous disposition, hence Hume denied that justice is a
natural virtue.
It is rather a product of social evolution /or convention intuited on the basis of utility,
“thus self-interest is the original motive to the establishment of justice, but a sympathy
with public interest is the source of moral approbation, which attends that virtue”.
Although it is not natural, Hume believed its rules were not arbitrary. When Hume
relegates the role of reason to that of the slave of passions, he does not necessarily claim
that social rules of justice are no longer observed. Feeling does not necessarily operate
in a situation of anarchy.
People respect the goods of others on the supposition that others will do the same,
hence Hume insisted on a convention without the interposition of a promise. According
to Hume, the rules of justice operate on the basis of experience. “Two men, who pull
the oars of a boat, do it by an agreement or convention, though; they have never given
promises to each other. However, social justice operates within a scheme and it is not

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 reducible to individual instances of acts of justice, which may be contrary to overall aim
of public good.
Therefore, to maintain order and equitable distribution of services as established by the
artificial virtue – justice, society invents general rules. General rules have, for their end,
the maintenance of public goods. General rules of society owe their institution to the
need for justice in society, albeit its rules are artificial.

3.5 What does a common man say then about Legal Justice?
Regarding justice within the confines of legal philosophy, three basic couplings of
assertions can be distinguished, namely:
i. Procedural Justice.
ii. Formal Justice, and
iii. Justice as measure for the law.
To explain in law, one has to assume that law, to a greater extent, is made of system of
rules.
If a policeman catches B in a scene of a crime, and denies him legal aid or assess to the
information he is supposed to have before the law, there is an infringement of
procedural justice. In Nigeria, criminal cases such as murder have to be introduced first
in the magistrate courts for onward submission to the criminal court through the office
of the Director of Public Prosecution, it will be a matter of breach of the due process of
law to manipulate the process, hence a denial of procedural justice. So, if rule N says
that all who violate it will be punished, and those punishing do not take proper care to
find out those who have broken the rule, then there is breach of procedural justice.
Bur where in applying the rule, judge B punishes M, and leaves Q who committed the
same offence, either because Q is his brother or he hates M, there is a breach of formal
justice. This is the same where people are punished selectively or indiscriminately
under the law without any universal criterion or standard for all those to whom the law
applies, then there is breach of formal justice for like cases then, are not treated alike.
It is possible to have a coherent system of law or rules with due procedural or formal
processes, yet injustice may abound. Some positivists, notably Betham, Austin, Hart
and Kelsen, have argued that law remains law whether or not it is iniquitous. Procedural
justice and formal do not necessarily guarantee justice, hence some argue there is a
substantive justice that ought to be a measure of law. Naturally lawyers are correct to
insist that there is a set of higher principles that should found law, and its judgments are
discernible by human rationality. Thus, legal guarantees are not co-extensive with extra-
legal intuitions, hence there is need for a standard, and instead of law narrowing justice;
Justice should stand as a measure of the law.
SELF-ASSESSMENT EXERCISE
Can a theory of Justice ever be politically neutral?

4.0 CONCLUSION:

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 It will be pertinent to conclude that things will go for better for everyone if people do
that for which they are naturally gifted, allowing those who have the highest gift to lead,
hence avoiding a political back clash. Plato affirms that a political mess will be avoided
when, “either the stock of those who rightly and genuinely follow philosophy acquire
political authority, or else the class who have political control be led by some
dispensation of providence to become real philosophers. The state, therefore, exists to
further needs of humans, their happiness, and development in the good life according to
the principles of Justice. Just as the rational element is the soul of the body, so also
justice is the soul of the state.

5.0 SUMMARY
To talk about justice is to make a commitment to seek the good and the fair. The good
and the fair may belong to universal categories, right reason determines the measure in
which particular instantiations of the basic principles of natural law that good be done
and evil avoided or that one treats the other as he himself would like to be treated – may
be determined.

TUTOR MARKED ASSIGNMENT

i. What is Justice?
ii. Explain the following concepts:
(a) Distributive Justice
(b) Remedial Justice
(c). Correctional Justice
iii. What is equity?

7.0 REFERENCES/FURTHER READING

Akintunde, A.K.R., (1960) The Nigerian Legal System, Owerri Spectrum Law
Publishing.

Eze Melami, (1999) Outline of Nigerian Legal System Lagos, Grace Publisher Inc.

Freeman, M.D.A., (1994) Lloyd’s Introduction to Jurisprudence, London, Sweet and

Maxwell Ltd.

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 UNIT 3: GROUNDS FOR CRIMINAL LIABILITY AND PUNISHMENT

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Designating the Area of Crime.
3.2 Distinction between Responsibility and Liability.
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION:
By grounds criminal responsibility or liability is meant the conditions under which a
person may be held accountable or conditions under which a person may be held
accountable or responsible for harm caused before the law. It is the basic assumption of
law that, in the absence of evidence to the contrary, people are able to choose whether
to do criminal acts or not and that a person who chooses to commit a crime is
responsible for the resulting evil and deserves punishment.

2.0 OBJECTIVES
At end of this unit, you will know the following:
i. What crime is
ii. Whether the word ‘responsibility’ mean differently in law and moral
iii. If there is any conceptual gain in distinguishing between the concepts of liability and
responsibility, etc.
iv.
3.0 MAIN CONTENT
3.1 Designating the Area of Crime
The court regards crime as a wrong. Sometimes, opinions are divided as to whether a
crime is to be regarded solely as a moral wrong or simply a harm caused by doing an
action prohibited by the law. Where crime is taken to be a moral wrong by the courts,
then sentencing a criminal reflects, as Smith and Hogan wrote, the “revulsion felt by
citizens for a particular crime”. This disapproval of the conduct of the criminal is
reflected in punishment as a public denunciation of the conduct in question.
Should crime be taken necessarily as a moral wrong? Jerome Hall endorses the view
that crime is a moral wrong, thus, when a criminal is punished, he is evidently punished
for his wickedness, for doing evil. Patrick Devlin concurs with the view that sees crime
as a moral fact. He claims that there is a common morality in the society that society is
entitled to criminalize any behaviour that threatens its existence; hence it may be
justifiable and necessary for the society to punish immoral acts or behaviour. Some
others like H.L.A. Hart disagreed, insisting that the law should punish one for breaking

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the law and not necessarily for committing an immoral act, hence John Stuart Mill’s
harm principle is evoked on the basis that immorality is not a sufficient reason for
legally punishing someone.
The criminal law is chiefly concerned with anti-social behaviour. But not all acts that
the law criminalizes are regarded as crime at the same level. The stigma ‘criminal’ will
be attached to someone who is convicted of a criminal behavoiur, for example, murder.
Someone who is penalized for over-speeding has broken the law, but we would not
ordinarily tag him a ‘criminal’
There are many offences for which any element of stigma is diluted almost to the
vanishing point, as with speeding on the roads, illegal parking, riding a bicycle without
lights, or dropping litter. This is not to suggest that all these offences are equally
unimportant, it can be argued, by reference to the danger to others that exceeding the
speed limit ought to be regarded in a more serious light than commonly appears to be
the case. Yet it remains true that there are many offences for which criminal liability is
merely imposed by parliament as a practical means of controlling an activity, without
implying the elements of social condemnation characteristic of the major or traditional
crimes.
Regulatory Offences:
Offences of the regulatory group are referred to as strict liability offences. Liability is
strict because the prosecution is relieved of the necessity of proving Mens rea as one
or more of the elements of the actus reus. Strict liability has been criticized for
dispensing with the conventional requirement of criminal conduct, that is, voluntary –
act requirement. A soft defence that has been proffered for strict liability is that it is not
a real offence, but a regulatory crime. In its theoretical assessment, strict liability is a
compromise between the demands of full mens rea and the desire to protect society.

3.2 Distinction between Responsibility and liability

It may be asked, what is the basis for placing the tag ‘responsibility’ on one’s action?
Hart and Honoré maintain that just as in moral judgments in ordinary life we blame
people because they have caused harm, so also in all legal systems liability to
punishment or to make compensation usually depends on whether actions or omissions
have caused harm. Morality goes beyond liability based on causing harm. Moral
judgment sometimes blame specially comes into focus when harm is caused.
Harm can be caused directly through initiating a series of physical events or through
omission. Common sense blames people for harms caused through omission or neglect
of certain precautions that should have been taken care of, “we do this even if harm
would not have come about without the intervention of another human being
deliberately exploiting the opportunities provided by neglect”. In its legal equivalent, it
is held that “the instigation of crimes constitutes an important ground of criminal
responsibility and the concepts of enticement and inducement are an element in many
civil wrongs as well as in criminal offences”. To say then that one is responsible – that
is, responsible for something in law and morality- means that one is blamed for or made
to pay for a particular harm as determined by legal rules or moral principles. One’s

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 conduct falls within the parameters stipulated by the rule, which one can be blamed or
punished.
In one sense, it is important then to isolate questions of responsibility or liability for
one’s action from liability for punishment, although they can be co-existence. But
looking at the words ‘liability’ and responsibility separately, liability necessary
connotes punishment while responsibility does not. In other words, responsibility for
some action is not immediately reducible to liability for punishment. In the criminal
law, however, harm is a basis for saying that one is responsible, thus, that harm occurs
is a sufficient ground for punishment. Therefore, the meaning of the words liability and
responsibility is close enough in their application in law.

SELF-ASSESSMENT EXERCISE
Is there any conceptual gain in distinguishing between the concepts of liability and
responsibility?

4.0 CONCLUSION
It is generally a principle of criminal law that a person may not be convicted of a crime
unless the prosecution have proved beyond reasonable doubt that he caused or brought
about a certain event which is prohibited by criminal law, and that he had a defined
state of mind in relation to the event or state of affairs he has brought about.

5.0 SUMMARY
Liability and responsibility can mean the same thing but they are not necessarily
reducible to each other, especially where conditions for any possible assimilation of
meaning are not indicated. Whereas the state event or state of affairs is called actus
reus, the state of mind is referred to as mens rea

6.0 TUTOR MARKED ASSIGNMENT

i. What is a crime? Are all anti-social behaviours criminal?
ii. Does the word responsibility mean differently in law and morals? Or

7.0 REFERENCES /FUTHER READING

Akintunde, A.K.R., (1960) The Nigerian Legal System, Owerri Spectrum Law
Publishing.

Eze Melami, (1999) Outline of Nigerian Legal System Lagos, Grace Publisher Inc.

Freeman, M.D.A., (1994) Lloyd’s Introduction to Jurisprudence, London, Sweet and

Maxwell Ltd.

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 UNIT 4: RECKLESNESS, NEGLIGENCE AND MENS REA

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main content
3.1 Recklessness as Component of Mens Rea
3.2 Negligence as Component of Mens Rea
3.3 Is it justified to include Negligence in Mens Rea?
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 Reference / Further Reading.

1.0 INTRODUCTION
A person who may not intend to cause a harmful result can still be seen to have taken an
unjustifiable risk in causing it. The mention of unjustifiable risk certainly suggests that
certain risks are justifiable. For example, a doctor who performs a surgical operation
may know that his acts might cause death, but we do not describe him as reckless unless
the risk he took was an unjustifiable one. So, if a person takes an unjustifiable risk, he
will be taken to have acted recklessly. In other words, to say it is reckless, it is
necessary always to show that he took an unjustifiable risk.

2.0 OBJECTIVES
At the end of this unit, you will be able understand the following:
i. The line between intention and recklessness
ii. Whether it is morally right to include negligence as a component of mens rea.
iii. When one raises gross negligence to the level of criminal liability, etc.
3.0 MAIN CONTENTS
3.1 Recklessness as Component of Mens rea:
Recklessness has shades of meaning in English law, which have been called
‘Cunningham recklessness. In Cunningham,in the course of stealing money from a gas
meter, the defendant damaged a gas pipe causing gas to seep through a wall into an
adjoining flat where people resided. The defendant was charged with maliciously
administering a noxious substance. The judge directed the jury that the dependant’s
actions were malicious in the sense of being wicked. But the dependant successfully
appealed to the court of appeal. The court adopted a principle that recklessness is the
actual awareness of the risk of the prohibited consequence occurring. Following
Cunningham, the subjective meaning of recklessness was established, that recklessness
entailed the conscious running of an unjustifiable risk.
Therefore, recklessness is taken to be advertent when the accused has fore seen that the
particular kind of harm might be done and yet he goes on to take the risk of it, for it was

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claimed that the dependant was not actually aware of the risk. This fact of awareness is
taken to be the key element in bringing recklessness within the concept of Mens rea.

3.2 Negligence as Component of Mens rea

There are some who are not comfortable with the inclusion of negligence as a mens rea
component. J.W.C. Turner is of this camp. He argued that negligence should not be part
of mens rea. For him, the mental requirement of criminal responsibility is limited to
voluntary conduct and foresight of consequences. Turner outlines three rules for
determining the liability of a normal person at common law.
Rule 1 – it must be proved that the conduct of the accused person caused the actus reus.
Rule 11 – it must be proved that his conduct was voluntary.
Rule 111 – it must be proved that the accused person realized at the time that conduct
would, or might produce results of a certain kind, in other words that he must have
foreseen that certain consequences were likely to follow on his acts or omissions. The
extent to which this foresight of the consequences must have extended is fixed by law
and differs in the case of each specific crime. The lawyer must know, therefore, what
these consequences must be in each crime.
Foresight of consequences relate to turners Rule 111. Within foresight of consequences,
Turner only included intention and recklessness. He claimed that Rule 111 “does not
cover the state of mind of a man who is inadvertent – (without the intention), or
negligent in the proper legal signification of the word. According to him, negligence is
a different state of mind from intention and recklessness:
It is the state of mind of a man who pursues a course of conduct without adverting at all
to the consequences of that conduct, he does not foresee those consequences, much less
desires them. The word further indicates that he is in some measure blame worthy, and
that we should expect an ordinary, reasonable man to foresee the possibility of the
consequences and to regulate his conduct so as to avoid them. This being the meaning
of the word ‘negligence’ as a state of mind, the addition of an adjective, however
vituperative, cannot properly alter it.

Turner claimed that the word ‘negligence’ has been misused and he regretted that it still
subsists in the language of criminal law. He argues that negligence should not be
considered as a type of Mens rea. It is rather, according to Turner, properly understood
as inadvertence. Therefore, Turner classifies negligence as inadvertence. He argues
further that it could be excluded from mens rea, since the word negligence and
inadvertence can be used interchangeably.
However, H.C.A. Hart disagreed with turner who agreed that negligence is not a state of
mind. The tendency to exclude negligence as a state of mind, according to Hart, stems
from the fact that the word negligence and inadvertence are confused. Therefore, the
understanding of negligence revolves around the presence of capacity. A negligent
person has the capacity to conform to the law. He is held responsible for the capacity he
failed to use or exercise when he should.

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 3.3 Is it justified to Include Negligence in Mens rea?
The real issue is whether it is morally right to include negligence in Mens rea. What is
needed for responsibility is capacity that the person was in control and could have acted
differently. The absence of capacity negated responsibility. The negligence person is
blamed for not being careful; otherwise, he would not have acted negligently.
The moral for including negligence in Mens rea, according to Hart, rests on the
conviction that a grossly negligent person could be held responsible for not taking some
elementary precautions, even though he may not have acted deliberately. There is a
standard of conduct the negligent person is expected to meet, a standard he failed to
meet (although he had the capacity to do so) because he has been culpably careless. The
law commission says: A person is negligent if he fails to exercise such care, skill or
foresight as a reasonable man in his situation would exercise.
Some would think that it is morally wrong to punish someone for ordinary carelessness.
As Clarkson and Keating indicated, “negligence is not widely employed as a basis of
criminal liability in English law, the most widely notable exception being careless
driving contrary to the Road Traffic Act 1988” so, it is not every time negligent act.

SELF-ASSESSMENT EXERCISE
When does one raise negligence to the level of criminal liability?

4.0 CONCLUSION
As we know, intention, recklessness and negligence are forms of mental elements that
fall under Mens rea. Intention and negligence stand to each other as two poles in
opposite direction. And between them is recklessness. As R.A. Duff says one who
causes death recklessly falls between these two extremes of liability. He is less culpable
than the intentional killer more culpable than a merely negligent agent act in relation to
a specified harm, which they choose to bring about. Therefore, there are certain
expectations regarding people’s conduct. Very often it is said that a reasonable man is
supposed to behave in such and such a way.
5.0 SUMMARY
It is argued in this regard that criminal liability for negligence violated the requirement
for subjective principles, unless we want to make all offence to fall under strict liability.
Where negligence is admitted, there is no proof that the agent chose to bring about the
harm or that he was aware of it. Therefore, the fact remains that the required state of
mind for conviction is absent and whatever suit might be claimed to impute on him is a
matter of degree and judgment on which views may differ. In any case, the distinction
between recklessness and negligence should be maintained.

6.0 TUTOR MARKED ASSIGNMENT

i. How can the line between intention and recklessness be drawn?
ii. Is it morally right to include negligence as a component of Mens rea?

7.0 REFERENCE / FURTHER READING

81
 Akintunde, A.K.R., (1960) The Nigerian Legal System, Owerri Spectrum Law
Publishing.

Duff, R.A., (1990) Intention, Agency and Criminal liability: Philosophy of Action and
the Criminal law, Cambridge, Basil Blackwell.

Eze Melami, (1999) Outline of Nigerian Legal System Lagos, Grace Publisher Inc.

Freeman, M.D.A., (1994) Lloyd’s Introduction to Jurisprudence, London, Sweet and

Maxwell Ltd.

UNIT 5 THE LEGAL PROFESSION IN NIGERIA

CONTENTS

1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Development of Legal Practice in Nigeria
3.2 Those who can practice law in Nigeria.
3.3 Duties of a Legal Practitioner

4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/ Further Reading
1.0 Introduction
Every legal system has developed for itself a system of practice, which enables
qualified legal personnel to represent persons in a court of law. The different legal
systems of the world are the writ, the common law legal system, the continental or the
Romano- Germanic legal system, the Socialist legal system, and the Hindu legal
system. All these systems have peculiar characteristics, which also affect the way, and

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 manner a person qualifies to appear and practice as a legal practitioner within a given
system. Hence the conditions of admission to the legal profession differ in each state or
legal system. Those who are lawyers and admitted to the practice of law according to
the rules of the individual state may exercise their profession only before the courts of
that state or country. Therefore, this unit examines the development of the practice of
law in Nigeria, etc.

2.0 OBJECTIVES
In this unit, you will know the following:
i. Development of legal practice in Nigeria.
ii. Current qualifications of persons who can practice law in Nigeria.
iii. Duties of a legal practitioner.

3.0 MAIN CONTENTS

3.1 Development of legal practice in Nigeria
It is trite that the legal profession derived its origin from the English legal system and
was introduced into Nigeria in the second half of the 19th century. Before this time,
there were shades of traditional practices geared towards addressing the issue of law
and justice in different communities in Nigeria. Disputes were presided over by the
elders, family heads, kings or paramount rulers, chiefs and titled men. The sole purpose
was to restore social equilibrium through reconciliation of parties and to give severe
sentences where the need arose.

However, the first type of British court established in Nigeria was around 1849 when
due to interest in commerce around the ports of Brass, Calabar, Bonny, Okrika, and
Opobo, the British consulate established courts of Equity to resolve trade disputes
between Africans and Europeans. Subsequently courts were also established in Lagos.
Such courts include the Police Court, the Petty Debt Court, the Court of Civil and
Criminal Justice, the Courts of Requests and the West African Court of Appeal, from
then on the courts spread across country.
These developments brought to limelight the need for professionally qualified legal
practitioners to appear before the courts. Until 1880 when the first Nigerian to be
qualified as a lawyer returned to Nigeria having been called to the inner temple, there
were no such trained legal practitioners in Nigeria. Hence in August 1880, Christopher
Alexander Sapara Williams was enrolled in Nigeria, as the first Nigerian to practice law
as a professional in Nigeria.
The enactment of the Supreme Court Ordinance of 1876 marked a turning point in the
admission of persons to the practice of law in Nigeria. By the powers conferred on the
Chief Justice by the 1876 ordinance, he made order 8, rule 1, which provided for the
admission of local attorney subject to “a licence or enrichment for six months to appear
and act in the capacity of a Barrister and Solicitor or Proctor”. But as it were, the 1876
ordinance was repealed and replaced by the Supreme Court Ordinance 1943. Under this

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 Ordinance only qualified legally trained practitioners were to practice law in
Nigeria. Even at this, it was still obvious that English trained Barristers and solicitors
had some deficiencies practicing law in Nigeria.
The above anomalies and inadequacies led to the appointment if the Unsworth
Committee in April 1959. The Committee was charged “to consider and make
recommendation for the future of the legal education and admission to practice, the
right of audience before the court and the making of reciprocal arrangement in this
connection with other countries”. The report of the Committee precipitated into the
notable Legal Education Act 1962 and the Legal Practitioner Act 1962. It was under
this Act that the Law School was set up in Lagos for the practical training of legal
practitioners in Nigeria.

3.2 Those who can practice law in Nigeria under the legal practitioners Act of
1962, three categories of persons are entitled to practice law as legal practitioners in
Nigeria. These are:
i. Those entitled to practice generally.
ii. Those entitled for the purpose of any particular office, and
iii. Those entitled to practice for the purpose of any particular proceedings.

i Those who are entitled to practice generally as provided for in the Act are persons
whose names are enrolled and the Supreme Court as such as person produces a
certificate of call to Bar. The issuing of a qualifying certificate is the responsibility of
the council of legal Education who in appropriate circumstances waive some of the
requirements for the acquisition of such a certificate. Partial exemptions also exist for
law graduates of common law universities who have taught for at least five years, and
non-common law graduates who have taught for at least ten years in a faculty of law in
a Nigerian university. This exemption qualifies the affected candidates to be eligible for
admission into part II of the course.

ii. Those entitled to practice by virtue of office include but not limited to the Attorney
General, Solicitor General, Director of Public Prosecution of the state or Federal or any
other person so appointed by specific order to that effect.

iii. Others who are entitled to practice by warrant include such persons who are entitled
to practice law in their own jurisdiction where the legal system is similar to that of
Nigeria. Such persons will apply to the Chief justice of the Federation for that purpose.
The Chief Justice may be warrant authorize such a person to practice in Nigeria for that
purpose after payment of the prescribed fee. Such permission lapse after the final
determination of that particular case.

3.3 Duties of a Legal Practitioner

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 A legal practitioner has four main duties, which have been classified as
responsibilities.
These include:
i. His duty to the legal profession
ii. His duty to the Court
iii. His duty to his Client
iv. His duty to the members of the bar.

(i) His duty to the legal profession:

It is the duty of every member of the bar at all times to uphold the dignity and high
standard of his profession. He should refrain from engaging in any other occupation,
which has association with, may adversely affect the reputation of the Bar. It is
unprofessional for a Barrister to solicit professional employment by circulars,
advertisements, through touts or by personal communications or interviews. Except in
special circumstances or for some other urgent reason, a member of the Bar, should not
call at a client’s house or place of business for the purpose of giving to or taking
instruction from client. It is unprofessional conduct for a legal practitioner to claim that
he has paid his annual practicing fee when in the real sense he has not done so. It is
unprofessional conduct for a lawyer to accept employment as an advocate in a matter,
which he has previously acted in a judicial capacity.

(ii) His duty to the Court:-

The advocate, when he appears in court, owes the court the duty to respect and assist
the court in discerning the truth, which is the primary aim of doing justice. It is the duty
of counsel to give absolute respect to the Bench. By the provision of Rule 1 (10) R.P.C.

A lawyer should be punctual in all courts appearance and whenever possible give
appropriate notice for all tardiness or absence. Where a counsel is absent from court
without adequate notice, the court may in his discretion strike out or adjourn the case or
proceed with hearing without the counsel. While appearing before any court a counsel
must be properly dressed as provided for in the rules of professional conduct and must
maintain decorum. A barrister should never show marked attention or unusual
hospitality to a judge. Counsel should rise when addressing or being addressed by the
judge and his conduct before the court or his colleagues should be characterized by
candor and fairness.
Failing to observe the duty to the court may attract contempt of court.

(iii) His duty to his client:-

A counsel must fully and properly present his clients case and must insist on an
opportunity to present his clients case. The lawyer has a duty to accept brief in a court,
which he professes to practice, at a professional fee. In Udo V. State and Udofia V.
State, failure to accept brief or represent a client effectively was declare unprofessional.
A legal practitioner must not accept compensation, commission, rebate or other

85
 advantage from others against his client within the Knowledge or consent of his client,
after full disclosure. The court agreed on this principle of law in the case of John Daba
Brothers VJ.O. Ojesipe. By the provision of Rule 12, Rules of Professional conduct
(RPC), a lawyer should give candid and honest advice to his client. Hence in
Cocottompoulouis V. P.Z & Co. Ltd, the court held that it is the duty of solicitor to
show reasonable diligence and caution and to warn his client against the initiation of a
case, which is purely speculative and devoid of merits. The same view was respected in
Textile and Allied Products (Nig) Ltd V. Henry Stephen Shipping Ltd.

(iv) His duty to his colleagues:-

As professional colleagues the legal practitioner owes a duty to his fellow advocate. He
must treat his colleague with respect and utmost courtesy. He must not engage in verbal
warfare with his colleague, his objections, requests and observation should in every
case be addressed to the judge. Counsel should adhere strictly to all express promises or
agreement made to opposing counsel or fellow advocate. In United Mining and
Finance Corporation Ltd. V. Beacher Hamilton J, held that; the court will
summarily enforce undertakings taken by the solicitor in that character. A lawyer must
avoid sharp practices especially towards his colleagues. He cannot obtain judgment in
favour of his client without affording the fellow advocate a reasonable notice.

4.0 CONCLUSION
In this unit, we have examined the development of the practice of law in Nigeria, those
who could practice law in Nigeria and duties of a legal practitioner. Nevertheless, it is
pertinent to known that those who practice law must live by examples. They must be
disciplined and honest. Lawyers, no doubt, are the month piece of their clients.
Therefore they owe allegiance and justice, to their clients and the citizenry also.

SELF-ASSESSMENT EXERCISE
What duty does the advocate owe before he appears in court?

5.0 SUMMARY
The practice of law is a worthy calling. It is a noble course our country had afforded
intellectual pleasure with dignity and independence. Hence the most productive,
unselfish and wholly satisfying repayment of the obligation is constructive work to
increase the effectives of our judicial system and the welfare of the profession and the
people at large.

6.0 TUTOR MARKED ASSIGNMENT

i. What are the duties of a legal practitioner in Nigeria?
ii. Give a brief history of development of legal practice in Nigeria.

7.0 REFERENCES /FUTHER READING

86
Akintunde, A.K.R., (1960) The Nigerian Legal System, Owerri Spectrum Law
Publishing.

Eze Melami, (1999) Outline of Nigerian Legal System Lagos, Grace Publisher Inc.

Freeman, M.D.A., (1994) Lloyd’s Introduction to Jurisprudence, London, Sweet and

Maxwell Ltd.

MODULE 5
Unit 1: The Hierarchy of Courts in Nigeria
Unit 2: The Judiciary and Democracy in Nigeria
Unit 3: Judicial Settlements of Disputes
Unit 4: Constitution and Constitutional Democracy
Unit 5: Crime Control in Nigeria

UNIT 1 THE HIERARCHY OF COURTS IN NIGERIA

CONTENTS
1.0 Introduction
2.0 Objective
3.0 Main Content
3.1 Supreme Court
3.2 Court of Appeal
3.3 Federal High Court
3.4 State High Court
3.5 Sharia and Customary Court of Appeal
3.6 Magistrate Court
3.7 The Election Tribunals
3.8 The Hierarchical diagram of the Nigerian Courts
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 Reference/Further Readings

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 1.0 INTRODUCTION
Our focus here is on the hierarchy of Nigeria Courts with particular reference to their
composition and jurisdiction. The 1973 Constitution and chapter vii of the Constitution
of the Federal Republic of Nigeria, 1999, respectively, deal with the Nigerian
Judicature. This chapter contains sections 230 to 296 all of which have to do with the
explanation and description of the court system in Nigeria in respect of establishment,
appointments, Jurisdictions, composition/constitution, powers, practice, procedures,
enforcement and interpretation of legal/constitutional provisions. Therefore, under
Sections 230 to 285 of the Constitution, the following courts were established:
A. The Supreme Court
B. The Court of Appeal
C. The Federal High Court
D. The State High Court
E. The Sharia Court of Appeal of the FCT Abuja
F. The Customary Court of Appeal
G. The Election Tribunals.

The Constitution goes further to state that any other court may be established by virtue
of an Act of National Assembly or the law of a State House of Assembly shall also be
recognized by the Constitution. In this regards, the various tribunals and specialized
courts like National Industrial Court, Industrial Arbitration Panel, Juvenile Court, as
well as the state courts like the Magistrate and Area Court are constitutionally
recognized.

At the end of this unit, you are expected to understand the following:
(i) The hierarchy of Nigeria courts
(ii) The composition and Jurisdiction of the courts
(iii) The appointment of the Chief Justice of Nigeria and all other Justice of the court.
(iv) Difference between Sharia and Customary Courts of Appeal

3.0 MAIN CONTENT

3.1 Supreme Court:
As the name implies, this is the nation’s highest court. In respect of appeals, the
Supreme Court is the final port of call. The Constitution of 1979 and 1999 respectively,
stipulate that the court shall consist of such number of justices not exceeding 15 and 21
respectively at every point in time and should be headed by the Chief Justice of Nigeria.

Ordinarily, there are not less than five (5) numbers who sit during an appeal (i.e a
Normal Court). However, the Supreme Court can sit as a Full court, where there are
seven (7) member sitting on the bench in the following situations.
(i) Where the Supreme Court is exercising its original jurisdiction.

88
(ii) Where the question arising from the appeal before the Supreme Court is on
interpretation and application of the constitution
(iii) Where the appeal bothers on the question of fundamental human rights
(iv) Where the Supreme Court is ordinarily an appellate Court that determines appeals on a
final note from the court of appeal the constitution counters original jurisdiction on the
court so as hear civil case of first instance where:
a. There is a dispute between a state and the Federation, or
b. There is a dispute between a state and another state.

It must however be noted that original jurisdiction of the Supreme Court has been
suspended by virtue of Decree No. 1 of 1984.

A person can be appointed as a Justice of the Supreme Court or Chief Justice of Nigeria
if:
a. He has qualified to be a legal practitioner in Nigeria and
b. He has been so qualified for at least 15 years proceeding the date of appointment.

The appointment of the Chief Justice of Nigeria in a civilian regime is made by the
President on the recommendation of the National Judicial Council subject to the
confirmation of the Senate, while in Military regime it is done by the Military President
at his discretion. The appointment of other Justices of the Supreme Court is equally
made by the President upon the advice of the Advisory Judicial Committee. A Justice
of the Supreme Court must retire upon attaining the age of 70 and his tenure may
otherwise be terminated by the President in the event of a case of corruption or any
other inability to discharge the function of his office.

3.2 Court of Appeal:

Court of Appeal is essentially a court which jurisdiction is appellate. It hears appeals
from the Federal and State High Courts, Sharia and Customary Courts of Appeals as
well as the Code of Conduct Tribunal. The Court of Appeal is empowered in certain
instances to determine appeals from the Disciplinary Committees of some professional
bodies as well as any other court or tribunal in respect of which decision a Statute
expressly or impliedly confers appellate jurisdiction on the Court of Appeal.

The court should consist of such number of Justices not less than 49 at a time not less
than 3 according to section 237 of 1999 Constitution, of whom must be learned in
Islamic Personal Law and not less than 3 learned in Customary Law. The court is
headed by one of its justices called President of Court of Appeal. It is properly
constituted by 3 justices for the purpose of exercising any jurisdiction conferred upon it
by the constitution or any other law. There are 9 divisions of the Court of Appeal –
Lagos, Ibadan, Benin, Port-Hacourt, Jos, Kaduna, Enugu, Calabar, Ilorin and FCT
Abuja, where it is based.

89
 Qualification for appointment as the President or Judge of the Court of Appeal is based
on the appointee having.
(a) Qualified to practice as a legal practitioner in Nigeria
(b) For a period not less than 12 years
The same age of 70 for retirement for justice of the Supreme Court and conditions for
termination of appointment also apply.

3.3 Federal High Court:

This court was formally known as the Federal Revenue Court The 1979 Constitution
adopted it and changed its name to Federal High Court. It was further confirmed under
section 249 (1) of the 1999 constitution.

The Court consists of a Chief Judge of the Federal High Court and such number of the
Federal High Judges as may be prescribed by an Act of the National Assembly. The
Court is duly constituted if it comprises at least one judge of that court: (S. 249 (2) (a)
(b). and S. 253

The Chief Judge must not be less than 10 years in legal profession.

3.4 State High Court:

It was established by the 1979 Constitution. It is presided over by a person called a
judge who must be at least 10 years old in legal profession.

State High Court is a Court of unlimited jurisdiction in the sense that it has powers to
hear and determine any criminal and civil matter under both the State Law and Federal
Laws. The unlimited jurisdiction of the State High court does no however, extend to the
matters exclusively reserved for the Federal High Court by the Decree 107, as listed
above.

The High Court may also exercise supervisory jurisdiction over the other inferior courts
like magistrate court, district court etc. high Court also exercises appellate jurisdiction
in the sense that it serves as an appeal court for the cases coming from the other lower
courts. The retirement age for the Judges of both the Federal and State High Court is 65
years.

3.5 Sharia and Customary Court of Appeal:

The Constitution provides for the existence and composition of each of these courts.
The Sharia Court of Appeal presently exists in the Northern States. It hears and
determines appeals from the Sharia Courts in respect of matters arising from operation
of Islamic personal law. The Sharia Court of Appeal is properly constituted by 3
Khadis, and is headed by a Grand Khadi A Khadi is a person who is versed in Islamic
Personal Law without less than 10 years experience. The Court is to hear and
determine appeals from Customary Courts. Generally appeal lies from both the Sharia

90
 and Customary Courts of appeal to the Court of Appeal directly. While Sharia Court of
Appeal was established under section 260 (1) of the 1999 Constitution, the Customary
Court of Appeal was established under section 265 (1) of the 1999 constitution.

3.6 Magistrate Courts:

The Magistrate Courts were established under different Laws applicable in different
states of the Federal Republic of Nigeria, including Abuja, which make provisions for
the creation and jurisdiction of several grades of Magistrate Courts. The following
grading is peculiar to all the Northern States and the FCT. Abuja.
(i) The Chief Magistrate
(i) Magistrate Grade I
(ii) Magistrate Grade II
(iii) Magistrate Grade III
The following grading on the other hand can be found in most of the Southern States.
(i) The Chief Magistrate
(ii) Senior Magistrate Grade I
(iii) Senior Magistrate Grade II
(iv) Senior Magistrate Grade III
(v) Magistrate Grade I
(vi) Magistrate Grade II
(vii) Magistrate Grade III
Before a person can be appointed as a Magistrate except a Magistrate Grade III he must
have qualified as a legal practitioner in Nigeria for a reasonable period preceding the
date of his appointment.

Generally appeal lies from the decision of a Magistrate Court to the High Court.

3.7 Election Tribunals:

Tribunals are established on an ad-hoc basis. The law establishing tribunal usually
specifies the purpose and jurisdiction of each tribunal. The decision of the tribunal is
subject to the ratification of the National Assembly, the House of Assembly of a State
or other recognized authority. However, Election Tribunals were established by section
285 (1) of the 1999 Constitution, and known as the National Assembly Election
Tribunals.

The tribunals have original jurisdiction, to the exclusion of any court or tribunal, to hear
and determine petitions as to whether:
(i) any person has been validly elected as a member of the National Assembly
(ii) The term of office of any person under the constitution has ceased
(iii) the seat of a member of the Senate or a member of the House of Representative has
become vacant, and

91
(iv) a request or petition brought before the election tribunal has been properly or
improperly brought.

Also, in each of the Federation, there exit election tribunals known as the Governorship
and Legislative Houses Election Tribunals. These tribunals have, to the exclusion of
any other court or tribunal, original jurisdiction to hear and determine petitions as to
whether any person has been validly elected to the office of Governor or Deputy as a
member of any Legislative house.

3.8 THE HIERARCHICAL DIAGRAM OF THE NIGERIAN COURTS:

Supreme Court

Court of Appeal

National Federal State Sharia Customary

Industrial High High Court of Court of
Court Court Court Appeal Appeal
(FCT) (FCT) (FCT)

Industrial Magistrate Upper Area Customary

Arbitration Court Court Court
Penal
Area Court

Courtesy: Federal High Court Abuja

SELF-ASSESSMENT EXERCISE
Give an insight about the electoral Act in Nigeria.
4.0 CONCLUSION
A good knowledge of courts system in Nigeria as well as the hierarchy of the Nigerian
Courts is therefore, essential in appreciating the composition and jurisdiction of our
courts. What is important about our courts system is the degree of the force of law of a
decision, case or precedent according to the hierarchy of the court. The judgments of
the highest court in Nigeria such as the Supreme Court at Abuja and the Court of
Appeal, which has several divisions sitting in various parts of the country, have from
the time always commanded the greatest respect.

5.0 SUMMARY
The general rule of precedent or order of precedence established long ago in England in
the 19th century and which is consistently observed in the Nigerian legal system is that

92
decisions of the higher courts bind the lower courts, in Nigeria however, it is not the
province of judges to make law, but to interpret and apply the law as it is, whether it be
English law, Statute law, Customary law etc. Hence, judicial legislation does not
obtained in Nigeria. Where there is a gap in the law, it is not courts, but for the
legislature to amend and reform the law.

6.0 TUTOR MARKED ASSIGNMENT

(i) Define the roles of the Supreme Court
(ii) Differentiate the Supreme Court from an Appeal Court

7.0 REFERENCE/FURTHER READINGS

Hart H. L. A., (1971) - The Concept of Law, London Oxford University Press.

Kiralfy A. K. R, (1960) - The English Legal System, London Sweet and Maxwell.

Nnayelugo Okor and Aloysius – Michaels Okolie, (2001) - Comparative Politics

Today (A World View), India, Replika Press (p) Ltd.

The Constitution of the Federal Republic of Nigeria, 1999 - The Constitution

of the
Federal Republic of Nigeria 1979.
POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 2: JUDICIARY AND DEMOCRACY IN NIGERIA

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Emerging posture of the judiciary for Democracy
3.2 The Role of Judges in Democratic Nigeria
3.3 The Separation of Power in Nigeria
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings

1.0 INTRODUCTION
The judiciary known in legal parlance as the temple of Justice has been defined as the
branch of government invested with the judicial power, the system of courts in a
country, the body of judges, and the bench. That branch of government that is intended
to interpret, and apply the law. However, the survival of our democracy, it has been

93
 argued, depends almost entirely on how effectively the third arm of the government –
the judiciary – is able to play its constitutionally assigned role as the arbiter of disputes.
But in developing democracies like ours, the effectiveness of the judiciary in this regard
sometimes sets it on collision course with especially the Executive, because of the
inevitability of judicial pronouncements adversely affecting the Executive or its
agencies sometimes.

2.0 OBJECTIVES
In this Unit you will know the following:-
(i) The role of judiciary in the emerging democracy.
(ii) How independent can a judge be in a complex society like ours?
(iii) The position of judiciary during the Military era.

3.0 MAIN CONTENT

3.1 The emerging posture of the Judiciary for Democracy:
The judiciary has in fact, being playing a pivotal role in its efforts to rescue the country
from the recklessness of the executive and the legislation. Confronted with their
lawlessness, they said that Nigeria’s democracy was still young. The implication is that
the growth of democracy will be fast-tracked in Nigeria so that everybody will learn to
do things according to law and learn not to exceed his or her jurisdiction. In this regard
therefore, if the power of the judiciary is enhanced, it will go a long way in sustaining
and encouraging democracy.
However, it is commendable that the judiciary has always survived those moments of
Military rule with the least interference. Successive military regimes assume executive
and legislative, but very limited judicial functions. The Military ruled by Decrees and
Edicts and even if it has conceded that the citizenry was often denied the benefit of
democracy, it is a fact, Military regime in Nigeria have been more active in the area of
law reforms than the civilian regimes. Decrees and Edicts were passed with dispatch
even in areas where civilian legislators were traditionally fettered by political
considerations and bureaucratic red tape. Except for the breaches fundamental rights
and abuses of the rule of law, plus legislative ease has advanced the development of
Nigerian law.
It is noteworthy that all successive Military administrations provide for the supremacy
of Decrees over the Constitution with the provisions of the latter superseding in the
event of conflict, and thereby reversing the concept of constitutional supremacy.
However, the Nigerian judiciary has come of age. It has of recent been on the side of
the Constitution. When judiciary is working, ultimately, people will be acting with
caution, people will be happy with democracy and government will have the time to be
concerned with development projects and so on.

3.2 The Role of Judges in a Democratic Nigeria:

Although, the Military regimes of the past and present administration in their apparent
resolve to keep the judiciary down, did leave the country to operate under such

94
 procedures that were archaic and hampered the dispensation of justice. The untoward
consequences have been the people’s apathy towards litigation, as it was perceived as
an exercise in futility. If this trend had continued however, in the long run, the citizenry
would have been the ultimate losers, when the rule of law is relegated to the behest of
those who wield political power.
In Nigeria, however, it is not the province of judges to make law, but to interpret and
apply the law as it is, whether it be English law, Statute law, customary law and so
forth. Therefore judicial legislation does not obtain in Nigeria. Where there is a gap in
the law, it is not for the courts, but for the legislature to amend and reform the law. The
role of judges in Nigeria is essentially to apply the law as made by the legislature. This
is the view of the positive school of law, or positive theory of law, which is that, law, is
as made or as it is, whether good or bad until it is changed by amendment or repeal.
Therefore, as interpreters of the law, a court is not to assign meanings to the clear, plain
and unambiguous provisions of a Statute so as to make it conform to the courts’ own
view rather than what it ought to be.
3.3 The Separation of Powers in Nigeria:
The most significant challenge to the entrenchment of separation of powers is
Executive’s dominance over the other two arms of government in Nigeria. This derives
from the advantage the Executive enjoyed during the long history of Military rule. This
culture of Executive dominance has been carried over to civil rule, and it appears to
have been worsened by the emergence of a strong and influential Presidency of 1999 –
2007. At all levels of government, the relative weakness of the Legislature vis-à-vis the
Executive is shown in the excesses of the Executive and in the attempts to control the
Legislature, especially Executive influence in the oversight over the Executive.
However, the Legislature has been able to resist the Executive on a number of
significant issues. While the President vetoed 10 of the bills passed by the two houses,
the national parliament used its powers to override four of presidential vetoes. Hence a
significant number of Nigerians think that the Legislature is fairly effective in
exercising oversight over the Executive.
Thus, since the return to democratic rule in Nigeria in 1999, the Judiciary has been able
to demonstrate its independence and competence in landmark judgments concerning the
powers of the National Assembly to extend the tenure of office of local government
Chairmen, the registration of political parties, state control over natural resources, and
the management of the Federation Account, among others.
SELF-ASSESSMENT EXERCISE
What are the most significant challenges to the entrenchment of separation of powers
between the arms of government in Nigeria?

4.0 CONCLUSION
In this Unit we have discussed the judiciary and democracy in Nigeria, the role of
judges, and the influence or impact of Military regimes in our judiciary. Thus, we
conclude this Unit by saying, that against all odds, the judiciary has continued to
discharge its functions very well and courageously too. Judges are able to catch up with

95
 the dynamics of our ever changing society and are recharging course bearing in mind
the famous words in the Justinian Institute, Ignorantia Judicis est Calamitas Innocientis,
meaning the ignorance of the judges is the calamity of the innocent.
5.0 SUMMARY
Judiciary is now working in conformity with the basic doctrine of separation of powers.
If we have a vibrant judiciary, there is the tendency that democracy will be deepened,
because people in the three arms of government – executive, judiciary and legislature,
will know that they are supposed to check one another.

6.0 TUTOR MARKED ASSIGNMENT

Compare and contrast the role of Nigerian judiciary under a democratic administration
and under the Military regimes

7.0 REFERENCES/FURTHER READING

Aturu – Judiciary Is Showing Great Courage This Difficult Time, Sunday Independent,
May 6, 2007, P.B9
Ese Malemi, (1999) – Outline of Nigerian Legal System, Grace Publishers Inc.
Onyema Omenuwa – Shouldn’t Retired Judges Practise As Advocates? Daily
Independent, March 1, 2007, Law – P.1
Sanni, A. O. ed., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel
Publishing House.

96
 POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 3: JUDICIAL SETTLEMENTS OF DISPUTES

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Adjudicatory Method
3.2 Non Adjudicatory Method
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings

1.0 INTRODUCTION
In social interaction, conflicts are bound to arise and quite often the conventional
judicial arrangement is not capacious enough or unable to resolve all disputes. Law,
over the years, has striven to evolve an efficient means of resolving disputes in the
modern time. However, few individuals and States may not be so disposed to take
advantage of the existing legal frameworks. The methods, which the law has evolved,
are of two categories namely adjudicatory and non-adjudicatory methods.

2.0 OBJECTIVES
In this Unit you will be able to understand the following:
(i) The meaning of dispute resolution.
(ii) The methods of settling disputes in the modern time.
(iii) That the role of a judge can be likened to that of an umpire in resolving a dispute to a
logical conclusion.
(iv) That the adjudicator has to follow certain standard procedures or methods in resolving
the disputes.
3.0 MAIN CONTENT
3.1 Adjudicatory Method:
This is a formal method of resolving disputes. It involves the appearance of parties and
their witnesses before formal institutions or authorities such as the law court or tribunal
established by law. Thus, adjudication in its legal sense connotes judicial settlement of
disputes whether between individuals or between states, in a general sense, it refers to
the process of settling disputes peacefully by anybody with authority to make a decision
or award binding on the parties. The methods are usually set in motion through the
lawsuit or litigation. It is important to note that a particular event that gives rise to a
legal dispute before the court is usually made up of myriad of facts linked together like
a chord. For the judge or adjudicator to resolve the dispute, he must first of all ascertain
the facts of the case and then apply the law to the facts. Therefore, adjudication may be

97
 defined as the process of deciding matters in dispute by the decision of a court, tribunal,
commission, or other body binding on the parties.

3.2 Non-Adjudicatory Method:

This method does not involve the appearance of parties before formal institutions or
authorities, the calling of witnesses, the finding of facts and the apportionment of
blame. Most industrial relations disputes are resolved by bargaining between the parties
or possibly by mediation. Indeed, law also has to be malleable and aimed at soothing
frayed nerves and reducing animosities and enhancing harmonious relations among
hitherto disputing parties. This is largely the basic contribution of these para-judicial
mechanisms for settlement of disputes to the Nigerian legal system. However, the non-
ad judicatory method may not be done in formal institutions such as the law court, but
that notwithstanding, since the law recognizes the method and lays rules for their
operations.
Thus, the two main forms of non-adjudicatory methods of dispute resolution are:
(i) Reconciliation; and
(ii) Conciliation

(i) Reconciliation:
This is a process whereby the parties to a dispute confer with each other and reach an
agreement on how to restore or bring back cordiality or harmony in their relationships.
The only parties to the reconciliation are the disputants themselves.
(ii) Conciliation:
Conciliation denotes the action of bringing into harmony or effecting a settlement
between conflicting groups or individuals. The process generally involves aboard,
commission, agency, or some other groups which studies the facts, makes proposals to
the disputants, and attempts to arrive at a settlement of the conflict. Nevertheless, the
proposals are in the form of a recommendation and are not a binding award or
judgment. The disputants are therefore free to accept or reject the findings and
proposals as presented. Thus, the main distinguishing factor between conciliation and
reconciliation is the difference in the number of parties involved. Here, a third party is
involved. There are two main forms of conciliation namely:-
(i) Mediation;
(ii) Arbitration;

(i) Mediation:
In this type of conciliation, the third party called the “Mediator” rarely inquires into the
facts of the case and does not attempt to apportion blame. Rather, he seeks to provide
an acceptable formula for compromise and harmonious co-existence between the
parties. He merely offers suggestions on possible terms of settlement between the
parties, which have no binding force in the sense that the disputants are left to decide
whether or not to accept the suggestion. Thus, mediation has been defined by
Oppenheim as the “direct conduct of negotiations between parties at issue on the basis

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 of proposals made by the mediator”. Hence, it consists in an attempt by a third party to
reconcile the opposing claims of the parties in conflict by making a non-binding
proposal to that effect. In essence, mediation emphasizes the positive aspects of law. It
enjoins on the parties to a dispute the need and benefits of maintaining law and order
through a return to peace and incontestable status quo ante. Voluntary acceptance of
the proposed settlement otherwise the process is arbitration.

(ii) Arbitration:
Here the third party known as an “arbitrator” probes into the facts of the case in a fair
details and renders a decision on merit. He however avoids making an emphatic
decision on who is right or wrong. Thus, arbitration according to Fewick, as distinct
from other procedures of pacific settlement “is the submission of a controversy between
states to judges of their own choice who are to decide on the basis of respect for law
and whose award in the case is final.” What distinguishes arbitration from other forms
of mediation and conciliation is that while decisions or award of the arbitrator(s) is final
and legally binding, it is not binding for conciliators.

SELF-ASSESSMENT EXERCISE
Explain the methods of settling disputes in the modern time.

4.0 CONCLUSION
In this Unit, we have examined and fully discussed various methods of dispute
resolution, such as the adjudicatory and non-adjudicatory – methods. We also
discussed the forms of non-adjudicatory methods namely, reconciliation and
conciliation and mediation and arbitration. Thus, law over the years has striven to
evolve efficient means of resolving disputes in the modern time.

5.0 SUMMARY
The facts of the case raise issues relating to the primitive method of resolving a dispute
and continuous effort of man in the modern time to evolve an efficient means of conflict
resolution. Disputes were resolved during the Middle Ages by proofs rather than trials
such as trial by ordeal. The method was crude, uncivilized of the old. Such methods
are no longer acceptable and have even been criminalized. Therefore, whichever
method is used today is a more benign way of resolving conflicts.

6.0 TUTOR MARKED ASSIGNMENTS

(i) Define judicial settlement of disputes and distinguish between the adjudicatory and non-
adjudicatory methods of dispute resolution.
(ii) What do you consider as the best approach to resolve a dispute?

7.0 REFERENCES/FURTHER READING

Chite, R. E. (1942) – Conciliation: A Dictionary of the Social Sciences, London,
Tavistock Publications.

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 Ejiofor, L. U. J., (2000) – Conciliation, Arbitration and Mediation in Nigerian Legal
System, Nsukka, University Press.

Oppenheim, L.., (1952) – International Law, London, Longmans.

Sanni, A. O. ed., (1999) – Introduction to Nigerian legal Method, Ile-Ife, Kuntel

Publishing Hous
POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 4: CONSTITUTION AND CONSTITUTIONAL DEMOCRACY

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Meaning of the Constitution
3.2 Rigid and Flexible Constitutions
3.3 Constitutional Democracy in Nigeria
3.4 Democracy and Political Governance in Nigeria
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 Reference/Further Readings

1.0 INTRODUCTION
Nation States reserve the power and rights to stipulate some rules of interpersonal and
group relationships and to prescribe the basic principles that guide socio-economic and
political organization, and exchange relations. Such rules as agreed upon and endorsed
by the parliament become the cardinal elements that characterize the Constitution of a
given nation-state. However, such elements are either written or unwritten, but form the
super-structure or edifice upon which a particular State is organized and upon which
socio-economic competition takes place.

2.0 OBJECTIVES
In this Unit, you will be able to understand the following:-
(i) What constitutionalism is all about
(ii) That a written constitution is a basic law that determines exchange relations
(iii) Constitutional Democracy

3.0 MAIN CONTENT

3.1 Meaning of the Constitution:

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 Longman Dictionary of Contemporary English has defined Constitution as, “the system
of laws and principles, usually written down, according to which a country or an
organization is governed.” According to the BBC English Dictionary, “the Constitution
of a country or organization is the system of laws which formally states people’s rights
and duties”.

In a formal sense, constitution refers to:

(i) A fundamental legal document.
(ii) The fundamental institutions of a state the laws, customs and great conventions or
(iii) The total system of laws and customs

Bryce defined Constitution as “the aggregate of the laws and customs through and
under which the public life of a State goes on, or the complex totality of laws
embodying the principles and rules whereby the community is organized, governed, and
held together. Thus, Constitution can be aptly defined as laws and principles according
to which a State is governed. The objects of a Constitution are to limit the arbitrary
action of the government, to guarantee the rights of the governed, and to define the
operation of the sovereign power. Constitution can be written or unwritten.

Nigerian Constitution in Focus:

Nigeria has a written Constitution, and this in no doubt, is superior to all other laws.
The 1999 Constitution has therefore, vividly emphasized the supremacy of the
Constitution. Section 1 – (1) has stressed that, this Constitution is supreme and its
provisions shall have binding force on all authorities and persons throughout the
Federal Republic of Nigeria. Section 1 Sub-Section 2 also states that the Federal
Republic of Nigeria shall not be governed, nor shall any person or group of persons take
control of the Government of Nigeria or any part thereof, except in accordance with the
provisions of this Constitution.

And Section1 Sub-Section 3 of the Constitution has even laid more emphasis on the
supremacy of the Constitution by asserting thus: If any other law is inconsistent with
the provisions of this constitution, this Constitution shall prevail, and that other laws
shall, to the extent of the inconsistency, be void. As a matter of fact, the Constitution of
any country seeks to provide acceptable framework for inflation and societal
reproduction. The 1999 Constitution of the Federal Republic of Nigeria, like previous
Constitutions, has a broad purpose of promoting the good government and welfare of all
persons in the country on the principles of freedom, equality and justice, and for the
purpose of consolidating the unity our people.
3.2 Rigid and Flexible Constitutions:
According to the ease or difficulty with which Constitutions can be amended they are
sometimes divided into rigid and flexible constitutions. Constitutions may be rigid in
form or principle, but flexible in substance or practice. For instance, the U.S.
Constitutions is difficult to amend but broad enough in text to be interpreted flexibly.

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 Great Britain has an unwritten Constitution composed of customs, Conventions and
regular Acts of parliament. Every country has either written or unwritten Constitution.
It is only in truly democratic countries that Constitutions actually limit the powers of
government. In Nigeria, the government operates like a Leviathan and political leaders
appropriate the institutes of governance to subvert the Constitution and undermine the
rule of law.

3.3 Constitutional Democracy in Nigeria:

Nigeria returned to constitutional democracy in 1999 with a presidential, federal
Constitution. There have been demands by various civil society organizations, the
executive and the legislature for review of the Constitution. A national Political
Reform Conference (NPRC) set up in 2005 proposed many constitutional amendments
which became controversial, especially the provision to extend the tenure of the
executive by another term, and were not passed by the two houses of the National
Assembly in 2006. Thus, the process of constitutional review was aborted.
Nevertheless, the present government of President Yar’Adua has yet again set up
Constitutional Review Committee comprising of some eminent and galaxy Nigerians to
look into the areas of the constitution that need to be reviewed, amended, tinkered and
what have you.

The principle of checks and balances, which is central to the presidential system, has
been difficult to practice, large because the executive overshadows the legislature and
judiciary, a legacy of the long period of military rule. Nigeria achieved a major
landmark in its democratic evolution by the relatively successful conclusion of the 2003
elections, the first to be done by a civilian regime. However, many international and
local election observers have condemned the conduct of the 2007 elections, warranting
the President, Alhaji Umaru Musa Yar’Adua, to set up an Electoral Reform Panel in
August 2007 to propose changes that will guarantee free and fair elections in the future.

Thus, without doubt, Nigeria has come a long way in its practice of constitutional
democracy since 1999. Compared to the Military period, there have been huge
improvements in respect for human rights, in equitable distribution of resources and
competition for power. Democracy institutions that were established in 1999 are
gradually maturing in performing their functions and understanding the limits of their
powers.

3.4 Democracy and Political Governance in Nigeria:

In recent times, there have been recommendations as well by various civil society
organizations and other institutions, to improve the status of democracy and political
governance in Nigeria, and some of these key recommendations are the following: -
(i) Standards and codes not yet ratified should be ratified and domesticated in the shortest
possible time;

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(ii) The Economic Reform Programme should be faithfully implemented to sustain macro-
economic stability;
(iii) Appropriate laws should be passed to institutionalize the economic reforms of the
government.
(iv) Capacity-building to deepen new budget orientation and to institutionalize monitoring
and evaluation of budget implementation by civil society organizations (CSOs);
(v) Capacity-building of public servants to operate the Public Procurement Law;
(vi) Passage and operation of the Fiscal Responsibility Bill, strengthening of support to anti-
corruption agencies (EFCC & ICPC) to fight economic crimes and speedy trial of
corruption cases.

SELF-ASSESSMENT EXERCISE
Explain the level of constitutionalism in Nigeria.

4.0 CONCLUSION
In this Unit, we have focused our discussions on, the meaning of Constitution, rigid and
flexible constitutions, constitutional democracy in Nigeria and, democracy and political
governance in Nigeria. Thus, it is pertinent to conclude that corporate governance
should be improved, and the rule of law up-held for the welfare of the people.

5.0 SUMMARY
In Nigeria for instance, post-colonial political leaderships had tended to reduce the
major problem associated with political instability and bad governance to the
constitution. As a result, this has resorted to frequent and unrestrained review of
existing constitutions.

6.0 TUTOR MARKED ASSIGNMENT

(i) Define Constitution and explain Rigid and Flexible Constitutions.
(ii) What is constitutional Democracy and explain some of the key recommendations to
improve political governance in Nigeria.

7.0 REFERENCES/FURTHER READINGS

Ese Malemi, (1999) – Outline of Nigerian Legal System, Lagos, Grace Publishers Inc.

Nnanyelugo Okoro and Aloysius Michael Okolie, (2004) – Law, Politics and Media
in Nigeria, Nsukka, Prize Publishers Ltd.

Sanni, A. O. ed., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel

Publishing House.

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1999 Constitution of the Federal Republic of Nigeria.

APRM Country Self-Assessment Report (CSAR) Executive Summary – NEPAD

Nigeria, 2008.

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 POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 5 CRIME CONTROL IN NIGERIA

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Contents
3.1 Defining Crime
3.2 Elements of Crime
3.3 Fighting Corruption in the Political Sphere
3.4 Fighting Corruption and Money Laundering
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 Reference/Further Readings

1.0 INTRODUCTION
The Nigerian state is a historical phenomenon. The state as a conceptual variable refers
tot eh totality of the materiality of political class domination in a society. However the
incidence of crime, organs of crime control, elements of crime and then the relationship
between criminal and civil offences, are what we are relating in this unit. But our
central focus is to study and understand the trends and patterns of crime control and the
extent which the Nigeria State has tackled the issue of crime in the post-military
Nigeria.

2.0 OBJECTIVES
By the end of this unit, you will be able to know the following:
(i) The meaning of crime, and its elements
(ii) Crime control in post-military Nigeria
(iii) The role of civil society organization other agencies to fight crime in Nigeria.

3.0 MAIN CONTENT

3.1 Defining Crime:
It is not easy to define a crime so as to indicate from the nature of the act precisely what
is a crime and what is not a crime; as a result, any definition of a crime based on the
intrinsic quality of an act is bound to fail. This is because conduct may at once be both a
crime and a civil wrong, for example stealing, assault.

However, crime refers to a grave and serious form of anti-social behaviour. It is an act
of commission or of omission, which tends to the prejudice of the community and is
forbidden by law under pain of punishment inflicted by the State – Oputa Curzon noted
‘that crime is any act or omission result from human conduct which is considered in
itself or in its outcome to be harmful and which the state wishes to prevent which

105
 renders the person responsible liable to some kind of punishment as the result of the
state proceedings which are usually initiated on behalf of the state and which are
designed to ascertain the nature, extent, and the legal consequences of that person’s
responsibility.

Tappan defines crime “as an intentional act or omission in violation of criminal law,
committed without defense or justification and sanctioned by the states as a felony or
misdemeanor. Thus, from the above definition, one would conceive crime as any act or
conduct of an individual or group, or violation of the criminal law of the society.
However, if the act or conduct does not violate the criminal law of the society then the
act or conduct does not constitute a crime.

3.2 Element of Crime:

There are certain conditions that have to be present before an act can be considered as
crime. Sutherland and Cressey have drawn attention to the seven interrelated and
overlapping conditions, which can make an act a crime, these are:
(i) There must be harm or injury inflicted on some other person(s) by the actor
(ii) The act must be prohibited by the criminal law at the time it was committed
(iii) There must be intentional or reckless conduct which causes the harm or injury directly
or indirectly
(iv) There must be mens rea or criminal intent on the part of the actor when he decides to
engage in the act. The intention or motive of the actor must be shown to be willful and
deliberate in engaging in the outlawed conduct
(v) There must be a coincidence of mens rea and actus reas. The mental element (criminal
intent) must correspond with physical element (the harmful conduct)
(vi) There must be a casual relationship between the outlawed harm and the voluntary
misconduct. This means that if A shot B and B dies later in hospital from typhoid fever,
there is no direct link between the gun-shot wound and the death of B.
(vii) There must be legally prescribed punishment for the outlawed conduct. If there is no
legally sanctioned punishment for the conduct, that conduct does not constitute a crime.

3.3 Fighting Corruption in the Political Sphere:

Corruption is a criminal act and is a huge challenge in the public administration in
Nigeria. It is at the core of the crisis of governance, the establishment of a stable
democratic order, rule of law, development and the welfare of citizens. Of all forms of
corruption, political corruption has remained a major obstacle to national progress in
Nigeria. The current democratic regime has put in place mechanisms that can prosecute
the war against corruption, while there is improved awareness on the part of the
citizenry of the need to fight corruption. The Economic and Financial Crimes
Commission (EFCC) has recorded significant landmarks in the fight against corruption
by bringing to book big men engaged in corruption waters. But not much progress has
been made in dealing with political corruption in electoral fraud and vote buying as

106
demonstrated by the 2003 elections and 2007 elections. In general, there is a need to
check the excessive use of money in politics.

3.4 Fighting Corruption and Money Laundering:

The Nigeria Government and Corruption Study (2003) measured the perceptions of
Nigerians on the major problems of development and ranked corruption in the public
sector only second to unemployment, while corruption in the private sector was ranked
12th. In 2001 the Nigeria Police in general was adjusted the most corrupt public
institution in the country. Most Nigerians surveyed believed that the key organs of
bureaucracy and governance (Federal and State Executive Councils and Local
Government councils, political parties, members of the National Assembly) were very
dishonest.

Since 1999, the Federal Government has shown determination to tackle corruption, as
well as improve transparency and accountability. Government equaled its commitment
through a number of initiatives and best practices, including, the “no longer business as
usual.” Independent Corruption Practices Commission (ICPC), Economic and Finance
Crime Commission (EFCC), Police, Customs, Judiciary, Prisons, NAFDAC,
Immigration etc. and establishment of the Budget Monitoring and Price Intelligence
Unit (BMPIU), are a holistic approach in the strengthening and modernization of
institutions whose duty it is to foster and/or engender compliance.

However, the fight against corruption and money laundering in Nigeria faces some
challenges, such as the time and resources, the capabilities of the EFCC and ICPC,
which are limited. The Nigerian Police, constitutionally empowered to enforce criminal
laws, is itself not insulated by the stormy and prevailing social ills. Their actions rather
recycle crime and deeper the sophistication of such acts.

SELF-ASSESSMENT EXERCISE
Can you say that crime has been controlled to a reasonable extent in the post-military
Nigeria.

4.0 CONCLUSION
In this unit, we have discussed what crime is and crime control in our society. We
discussed also the elements of crime, corruption in the political sphere and its remedial
steps. Fighting corruption and money laundering was also discussed. Thus, we conclude
that crime inflicts social injuries to the society, retardation of social-economic and
political progress, and brings bad name to the country.

5.0 SUMMARY
Presently, all the necessary mechanism put in place to deter crime seem not to be
working, as there is more crime in our society now than ever before, armed robbery has

107
 become a norm, as bribery and corruption is now a way of life. Moreover, forgery,
white collar crimes, thuggery, murder, political assassinations, arson, looting and
plumber of public wealth are entrenched, as rape, sexual offences and ritual murders
have become endemic in Nigeria Society.

6.0 TUTOR MARKED ASSIGNMENTS

1. What is crime? Explain Elements of crime.
2. In your view, what do you think is/are needed to be done to eradicate crime in
Nigeria?

7.0 REFERENCE/FURTHER READING

Hall J. (1960) - General Principles of Criminal law, Indiahapolis, Bobbs.

Nnanyelugo Okor and Aloysius – Michaels Okolie, (2004) - Law, Policies and
Mass Media in Nigeria, Nsukka, Prize Publishers Ltd.

Okonkwo C. O., (1980) - Criminal law, London, Sweat and Maxwell

Tapper P.W., (1990) - Crime Justice and Correction, New York, McGraw Hill Book
Co.

APRM Country Self-Assesment Report (CSAR) Executive Summary – NEPAD

Nigeria 2008.

POL. 124 NIGERIAN LEGAL SYSTEM

MODULE 6

UNIT 1: An Outline of Civil Procedure in Nigeria

UNIT 2: Civil Procedure in the Magistrate
UNIT 3: Commencement of Civil proceeding in High Court
UNIT 4: Interrogations and further and better application
UNIT 5: Enforcement of Judgments

UNIT 1: AN OUTLINE OF CIVIL PROCEDURE IN NIGERIA

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 What is Civil Procedure?
3.2 Subsidiary Legislations
3.3 The Civil Procedure of the Courts

108
 4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION:
The sources of the law of civil procedure consist of Statutes and subsidiary legislation.
The subsidiary legislation forms a large body of the law than the Statutes. Statutes
establishing the courts usually contain a few rules of procedure and provide that in
general where there are no provisions on any particular matter in the rules of court made
under those Statues, appropriate English rules of court are not inconsistent with the
Statutes. Thus, generally, Rules of the Supreme Court of England apply in all
jurisdictions in Nigeria with respect to matters not dealt with by local enactments,
containing rules of court. Therefore, civil law can be used as a generic term to denote
the rules of law that govern any given political community. Generally, civil law
denotes the whole body of law which is concerned with civil as distinct from criminal
proceedings.

2.0 OBJECTIVES
In this unit, you should be able to know the following:-
(i) What civil procedure is
(ii) The difference between the civil procedure and criminal procedure.
(iii) Sources of civil procedure rules.
(iv) Subsidiary legislations.

3.0 MAIN CONTENT

3.1 What is Civil Procedure?
Civil Procedure is the method, or procedure of commencing, conducting and concluding
civil matters, trials, or claims in court. Civil proceedings are taken in order to assist
individuals to recover property or enforce obligations in their favour. Jackson was of
the view that in law the term civil is sometimes used to mean the whole law of some
particular state in contrast to international law.

In consideration of the above, civil offence in a given State means an offence against
the law of that State which is of course, not military law, criminal law, religious and
ecclesiastical law. In fact, the rules, which regulate the conduct of civil proceedings in
the law courts or judicial settlement of civil offences, are collectively called civil
procedure.

Sources of Civil Procedure rules:

The source or origin of the rules, regulating the civil practice and procedure of courts in
Nigeria are:-

109
(i) The condition, it establishes the judiciary and provides for procedure rules to be made
for the court.
(ii) Statutes, establishing the relevant courts.
(iii) Subsidiary legislation, which, provide civil procedure, rules for the relevant court. The
subsidiary legislation is usually made by the relevant delegate of power pursuant to the
provisions of the Statute establishing the court.
(iv) Rules of practice and procedure of English Courts, which apply where there is no
statutory provision.

Thus, the courts specifically established by the Constitution and for which it provides
some procedure rules and also gave powers for procedure rules to be made are:
Supreme Court of Nigeria, Court of Appeal, Federal High Court, High Court of the
Federal Capital Territory, Abuja Sharia Court of Appeal of the Federal Capital
Territory, Abuja, Customary Court of Appeal of the Federal Capital Teritory, Abua,
High Court of the State, Sharia Court of Appeal of a State, and Customary Court of
Appeal of a State.

3.2 Subsidiary Legislation:

Statutes establishing the various courts usually provide some rules of procedure for the
specific courts in question. Alternatively, the procedure rules are made under a separate
Statute.

Thus, civil procedure rules are usually made for courts by the relevant delegated
authority in the form of subsidiary legislation, pursuant to the Constitution and or the
Statute, which specifically established the court. Examples of provisions enabling
delegated persons to make civil procedure rules for court in the form of delegated
legislations are – Sections 46 (3), 236, 248, 254, 259, 264, 269, 274, 279 and 284 of the
1999 Constitution.

3.3 The Civil Procedure of the Courts:

Practice and procedure rules and forms, regulate and characterize the work of the
courts, whether it be civil proceedings or criminal proceedings. Thus, civil and criminal
proceedings in the courts must be commenced and prosecuted according to the
procedure laid down by the relevant court in its procedure rule or Criminal Procedure
Act and equivalent laws in the States, as the case may be.
However, as noted before, the civil procedure rules of courts may be gathered from the
following sources: The Constitution, Statutes establishing the relevant court, subsidiary
legislations, providing civil rules for the relevant court, and rules of practice and
procedure of English Courts which apply in an appropriate court, where there is a gap in
the rules, provided that such rule is not in conflict with the statute establishing the court
and so forth.

SELF-ASSESSMENT EXERCISE

110
 What civil procedure and in what ways is it distinct from Criminal procedure?

4.0 CONCLUSION
In this Unit, we have defined what civil procedure is all about. We also discussed
subsidiary legislations and the civil procedure of the courts. Thus, we can rightly
conclude that a civil matter or claim may have a criminal issue or element, in which
case, the civil aspect will be decided according to the relevant weight of evidence
required by the evidence required by the Evidence Act, which is proof beyond
reasonable doubt.

5.0 SUMMARY
The rules of procedure of courts are no more than guides, to help everyone and the
courts to do and achieve justice in the shortest and most convenient way. Procedure
rules or procedural law do not affect, displace nor detract from substantive law, but they
are the procedure, instruments, or tools by which the courts are to achieve the
provisions and object of substantive law, which is justice for the parties in a suit and
everyone.

6.0 TUTOR MARKED ASSIGNMENT

(i) Explain Civil Procedure and what are the sources of Civil Procedure Rules?
(ii) Outline the civil procedure of the courts and subsidiary legislations.

7.0 REFERENCES/FURTHER READING

Akintunde Olusegun Obilade, (1990) – The Nigerian Legal System, Owerri,

Spectrum Law Publishing.
Ese Malemi, (1999) – Outline of Nigerian Legal System, Lagos, Grace Publishers Inc.

Nnanyelugo Okoro and Aloysius – Michaels Okolie, (2004) – Law, Politics and Mass
Media In Nigeria, Nsukka, Prize Publishers.
Sanni, A. O., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel
Publishing House.

111
The 1999 Constitution of the Federal Republic of Nigeria

112
 POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 2: CIVIL PROCEDURE IN THE MAGISTRATE COURT:

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Choice of Court and Issue of Summons
3.2 Originating Summons
3.3 Pre-trial Stage and Settlement
3.4 Default Action
3.5 Trial
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
In general, civil procedure in the various Magistrate Courts is uniform but there are
some important differences. It is intended to discuss here the rules of civil procedure in
the Magistrate Court of Lagos State. Thus, the Civil procedure of a Magistrate Court
may be summarized by considering the salient stages of the procedure such as the
choice of court and issue of summons, pre-trial stage and settlement, default action, trial
and enforcement of judgment.

2.0 OBJECTIVES
In this Unit, you will be able to understand the following:-
(i) The civil procedure of a Magistrate Court with reference to Magistrate Court of Lagos
State.
(ii) About the pre-trial stage and settlement.
(iii) The role of the Magistrate.
(iv) What happens to the defaulter? Etc.

3.0 MAIN CONTENT

3.1 Choice of Court and Issue of Summons:
The plaintiff, that is, the person who is suing and asking for relief is expected to
commence or initiate proceedings in the Magistrate Court in one of the following
districts:
(i) Where the defendant resides, or
(ii) Conducts his business, or

113
(iii) District where the causes of action arose wholly or partly.

The plaintiff or his counsel commences the action by filing in the court a request for a
summons, which may be ordinary summons or default summons which is issued for
debts or liquidation money demands setting out the details of the claim, which
summons is then served by the court bailiff on the defendant, that is, the person who has
been sued.

An infant may sue by his next friend and may defend by his guardian. His next friend is
usually his father or a person. No person is to act as next friend unless he has signed a
written authority for the purpose, the authority has been filed in the Court Registry and
he gives his own written consent to act in that capacity.

Lunatics and persons of unsound mind not adjudged lunatics may sue and defend an
action by their committee. Persons of unsound mind may sue by their friends with the
consent of the next friends and defend an action by guardians appointed for that
purpose.

3.2 Originating Summons:

An originating summons is a summons other than a summons in a pending cause or
matter. It is a summons (a writ of summons), which originates an action. It is expressly
provided in the High Court rules that any person who claims to be interested under a
deed, will or other written instrument may apply by originating summons for the
determination of any question of construction arising under the instrument, and for a
declaration of the rights of the persons interested.

An originating summons procedure is appropriate where the main or only point in

dispute is the construction of a Statute or other enactment or the construction of a
document or where the main or only point in dispute is some other question of law. It is
not appropriate where a substantial dispute of fact is likely to arise. An originating
summons dispenses with the need for pleadings.

3.3 Pre-trial stage and settlement:

Where the defendant fails to do anything by taking one of the steps enumerated by the
Court, upon expiration of the time limited for the defendant to either enter appearance
and defend the claim, or settle the matter, the plaintiff may file in an application on
notice for judgment supported by an affidavit which will be heard by the Magistrate and
judgment given thereon, in conclusion of the case, unless the defendant enters
appearance and defends the action. Alternatively, the action may be determined without
going to trial or at any time before judgment, if the parties reach a settlement and
inform the court, in this instance:
(i) The matter may be discontinued by being struck out with or without cost, or

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(ii) The parties may file terms of settlement in court which is then pronounced as the
judgment of the court in the case.

3.4 Default Action:

Where the plaintiff is claiming a liquidated sum, that is, a fixed sum or debt which
amount is known or capable of being assessed, the plaintiff should commence the action
by way of a default summons or default action, so that, upon the defendant failing to
take necessary step to resolve the case or defend it, the plaintiff will have judgment
entered against the defendant on an application on notice.
3.5 Trial
Where pleadings have been filed, the party on whom the burden of proof lies in respect
of the material issues or questions between the parties must begin by stating his case.
Then he must produce his evidence and examine his witnesses. When he has concluded
his evidence, he must ask the other party if he intends to call evidence. If the other
party does not intend to call evidence, the party who began is entitled to sum up the
evidence already given and comment on it.

However, the other party states his case. The case on both sides is then considered
closed. The Magistrate then considers all the evidence before him and gives judgment
to the party, who has evidence on the balance of probability in his favour, or the party
who has discharged the burden of proof cast on him on the balance of probability or on
a preponderance of evidence as required by the Evidence Act or Law in the State.

SELF-ASSESSMENT EXERCISE
What is your understanding of the civil procedure of a Magistrate Court with reference
to Magistrate Court of Lagos State.

4.0 CONCLUSION
It is apt to conclude this unit by reminding ourselves the areas discussed, and these are,
the choice of court and issues of summons, originating summons. We have also
discussed pre-trial stage and settlement, default action and finally, trial.
5.0 SUMMARY
As a general rule, every entity recognized as a person by the law can sue and be sued
and any entity not recognized by the law as a person can neither sue nor be sued. But
there are certain classes of persons under disability, for example, infants, and lunatics.
6.0 TUTOR MARKED ASSIGNMENT
What are the salient stages of civil procedure in the Nigerian Courts?

115
7.0 REFERENCES/FURTHER READING
Akintunde Olusegun Obilade, (1990) – The Nigerian Legal System, Owerri,
Spectrum Law Publishing.

Ese Melami, (1999) – Outline of Nigerian Legal System, Lagos, Grace Publishers Inc

John Ohireime Asein, (1998) – Introduction to Nigerian Legal System, Ibadan, Sam
Bookman Publishers.
Kiralty, A. K. R., (1960) – The English Legal System, London, Sweet and Maxwell.
Sanni, A. O., (1999) – Introduction to Nigerian Legal Method, Ile-Ife, Kuntel
Publishing House.

POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 3: COMMENCEMENT OF CIVIL PROCEEDING IN THE HIGH

COURT
CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Commencement of Action
3.2 Appearance
3.3 Settlement
3.4 Summary judgment

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 3.5 Pleadings
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
A party who has been wronged or is aggrieved and wishes to seek relief in a High Court
usually consults a lawyer for legal advice, who takes down the facts of his case and
instructions. If the matter is not urgent and needing immediate action in court to
forestall irreparable damage, the lawyer may as a first step write a letter of demand to
the would be defendant demanding that a debt be paid, a wrong be put right and or
monetary compensation be paid to his aggrieved client as the case may be and give a
period of time for the demand to be met, failure of which action is thereafter filed, with
or without giving further notice to the would be defendant or alleged wrong-doer.
2.0 OBJECTIVES
At the end of this Unit, you should know the following:
(i) How a case starts in the courts.
(ii) The stages before the final conclusion.
(iii) Settlement, and
(iv) Pleadings and its objectives.

3.0 MAIN CONTENT

3.1 Commencement of Action:
An action may be commenced in the High Court by a counsel filing one or a
combination of the following papers in court:-
(i) Writ of Summons, or originating summons, together with a statement of claim, or
(ii) Exparte motion, with or without a writ of summons and a statement of claim, which
may be filed later.
(iii) Petition, as may be necessary, such as in matrimonial proceedings for divorce and so
forth, or winding up of a company for its inability to pay its debts and so forth.

A writ of summons when filed is sealed by embossing the court’s name on it for service
by bailiff on the defendant to give him notice of the claim, made against him and
requiring him to acknowledge service and to defend it, if he does not admit the claim.
A statement of claim may be filed along with the writ or later on within 14 days of the
service of the writ on the defendant.

A writ usually contains the following endorsements:

(i) Names of the parties to the suit, that is:
(a) The name of the Plaintiff and his address;
(b) Name of the defendant and his address, and
(c) Name of the plaintiff’s solicitor and his business address for service of court processes.

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 (ii) An endorsement of the claim against the defendant:
A writ is required to be served on the defendant personally. The life of a writ is 12
months, within which time it has to be served, although its life may be renewed before
it expires to enable it to be served.

3.2 Appearance:
A defendant may enter an appearance to a writ after an acknowledgement of the writ by
sending by post to the Registrar a memorandum of appearance together with a copy of
the memorandum. Where the defendant appears in person, the memorandum must be
signed by him and must contain an address for service, which address must be within
the jurisdiction of the High Court.

However, where a defendant fails to enter appearance, within the time frame, the
plaintiff, may by a motion on notice obtain interlocutory or final judgment against the
defendant in default of appearance and or failure to defend the action. As a final
judgment, the judgment is final with respect to the liability of the defendant to pay
damages as well as with respect to the quantum of damages.

3.3 Settlement:
Parties to an action may also settle the dispute for valuable consideration or without
consideration and withdraw the action without filing terms of settlement in which cases
the action will be struck out by court or by filing terms of settlement in court, which
will pronounce it as consent judgment of the court in conclusion of the action.

3.4 Summary Judgment:

Summary judgment is a procedure or device available for promptly and expeditiously
obtaining judgment and disposing off a controversy or matter without a trial. It is
usually available where:
(i) There is default of appearance, and or
(ii) Failure to file a defence, or
(iii) When there is no dispute as to either material facts or inferences.

This procedure permits any party to a civil action to move for a summary judgment on a
claim, counter claim or cross-claim where he believes that there is no genuine issue of
material fact to be tried and that he is entitled to judgment as a matter of law, in any of
the situations listed above.

3.5 Pleadings:
Pleadings are written statements served by a party on his opponent and containing the
allegations of fact on which the party relies. They enable the parties to determine areas
on which they are agreed and areas on which there is a controversy between them.
Certain facts stated by a party may be admitted by his opponent, in that case the facts
need not be proved.

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 Thus, pleadings enable each party to know what facts he had to prove at the trial and
surprise, which might follow from one party rising at the trial facts that his opponent
did not anticipate, is avoided. The principal advantage of pleadings is that they enable
the parties to determine the precise issues in controversy between them.

The Object of Pleadings includes:-

(i) To state the claims of the parties.
(ii) To give the parties time for considered reply.
(iii) To ascertain the issues in dispute or controversy between the parties which requires trial
and decision by court?
(iv) To eradicate irrelevant matter, and
(v) To avoid a party spring a surprise by raising an issue he did not plead during the trial.

Thus, a pleading must not state or set out law but may raise an issue of law but without
reaching conclusions of law.

SELF-ASSESSMENT EXERCISE
How does a case start in the court?

4.0 CONCLUSION
In this Unit, we have vividly discussed on how a dispute commences into an action,
what writ is all about, how a defendant enters an appearance to a writ after
acknowledging the service of a writ, settlement of disputes, summary judgment, and
pleadings and its object. Thus, a court may order a stay, that is, a suspension of
proceedings in an action temporarily for good reasons.

5.0 SUMMARY
As I have mentioned above, a court has an inherent jurisdiction or power to stay
proceedings in a claim for any of the following, until something requisite is done or
until a party has complied with an order. However, a stay of proceedings may be
permanent, if to proceed with the action would be improper or the suit is frivolous,
vexatious or an abuse of court process, that is, an abnormal use of the court process.

6.0 TUTOR MARKED ASSIGNMENT

Explain any 3 of the following:-
(i) Commencement of action
(ii) A writ
(iii) Appearance
(iv) Pleadings
(v) The Object of Pleadings.

119
7.0 REFERENCES/FURTHER READING
Akintunde Olusegun Obilade, (1990) – The Nigerian Legal System, Owerri,
Spectrum Law Publishing.

Ese Melami, (1999) – Outline of Nigerian Legal System, Lagos, Grace Publishers Inc.

Kiralty, A. K. R., (1960) – The English Legal System, - London, Sweet and Maxwell.

Nnanyelugo Okoro and Aloysius – Michael Okolie, (2004) – Law, Politics and Mass
Media in Nigeria, Nsukka, Prize Publishers.

POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 4: INTERROGATIONS AND FURTHER AND BETTER

PARTICULARS
CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Summons for direction
3.2 Proceedings at the Trial
3.3 Judgment
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
These are questions, which one party may by notice or application file in court, require
the other party to answer on oath. The answer may then be read at the trial. Whether a
particular question may or may not be asked is a matter to be decided by the judge.
Request for particulars or for further and better particulars are designed to make clear
an opponent’s allegations, which if he fails to prove, he will as a general rule lose his
case. Discovery, further and better particulars and interrogatories are concerned with
evidence and where the person in custody of required information fails to produce it,
then other methods may be used to proof such fact.

120
 2.0 OBJECTIVES
In this Unit you should be know the following:
(i) Means of interrogatory;
(ii) Summons for Direction;
(iii) Trial of a case.

3.0 MAIN CONTENT

3.1 Summons for Directions:
After the close of pleadings, the plaintiff usually files a summons for direction,
returnable in not less than 14 days. A summons for direction is really in application to
court to set down the case for trial, that is, a date for the hearing of the matter.

On the other hand, a plaintiff may take out within seven days from the time the
pleadings are deemed to be closed a summons under rule 1 of Order 26 of the High
Court (Civil Procedure) Rules of Lagos State for the purpose of giving the court or a
judge in Chamber the chance of considering the preparations for the trial of the action.
The court or judge in Chambers may thus deal as far as possible with interlocutory
applications and he may give such directions with respect to the course of the action as
seems best adapted to secure the just, expeditious and economical disposal of the action.
This summons is therefore known as summons for directions. Thus, the filing of
summons for direction in court is to make parties prepare for trial of the action, so that
all appropriate pre-trial matters, which are outstanding, can be expeditiously dealt with
and allow for a date for trial to be fixed.

3.2 Proceedings at the Trial:

On the date fixed for trial, the parties and their witnesses usually assemble in court for
the trial. They come to court with the documents or other things required as exhibits.
Where a witness refuses to appear in court, a subpoena may be issued on him to attend
court. A subpoena is a summons to appear in court and give evidence, that is, testify and
or tender an exhibit, such as a document in evidence, on the condition that reasonable
expenses will be paid to him, by the party calling him as a witness. Witness, who ignore
a subpoena are in contempt of court and may be punished for such contempt, by a fine
or imprisonment.

Absence of Parties:
Where a cause on the Weekly Cause List is called and neither of the parties (i.e. the
Plaintiff and the defendant) appears, the action or the cause must be struck out by the
court unless it sees good reasons to the contrary. It may be adjourned, otherwise, if a
letter is sent to the court asking for adjournment. If the plaintiff appears and the
defendant does not appear, the plaintiff may prove his claim so far as the burden lies

121
 upon him. Where the defendant appears and the plaintiff does not appear, the defendant
is entitled to judgment dismissing the action if he has no counterclaim but if he has, he
may prove it so far as the burden of proof lies upon him. However, any judgment
obtained where one party does not appear at the trial may be set aside by the court on
the application of the party absent, on such terms as may seem fit.

3.3 Judgment
After the closing speeches or addresses of counsel, the judge sums up, that is, he
considers or evaluates the evidence given in the case and then gives judgment on the
same day. Where a judge requires more time to consider the case, he may reserve
judgment and adjourn the matter for judgment at such later date. On the judgment date,
the judge then gives verdict stating the facts and legal issues in the case, explain the
appropriate burden and standard of proof and states the basis of the judgment, and
enters judgment in favour of the appropriate party and also makes such Orders as are
relevant in the case.

Where the plaintiff proves his case, judgment will be given in his favour. However,
where he fails to prove his case, judgment will not be entered in his favour and the
defendant will escape liability. In civil cases, the burden of proof on a plaintiff is proof
on a balance of probabilities or proof on a preponderance of evidence.

SELF-ASSESSMENT EXERCISE
Explain Means of interrogatory and Summons for Direction.

4.0 CONCLUSION
In this Unit, we have discussed the introduction which starts with the interrogations and
further and better particulars. Coming to the Main Content, we have also discussed the
summons for directions, proceedings at the trial, and the judgment. Thus, we shall be
discussing enforcement of judgment in the next Unit.

5.0 SUMMARY
Trial of a case is usually in open courts and take place only when the plaintiff opens his
case and states the facts on which he relies, in line with his pleadings, or statement of
claim. The plaintiff’s witnesses, if any are examined in chief, cross-examined and re-
examined, where necessary. Documents and answer to interrogatories are presented by
the plaintiff and or witnesses and tendered as exhibits and the plaintiff’s case closed.
The defendant at the close of the plaintiff’s case may submit that there is NO case to
answer, stating his reasons. Closing addresses by the plaintiff and defendant’s counsels
end their case while judgment is awaited.

6.0 TUTOR MARKED ASSIGNMENT

(i) What do you understand by summons for direction?

122
(ii) Where a witness refuses to appear in court, a subpoena is issued on him to attend court.
What is subpoena in relation to proceedings at the Trial?
7.0 REFERENCES/FURTHER READING

Akintunde Obilade, O. (1990) – The Nigerian Legal System, Owerri, Spectrum Law
Publishing.

Ese Melami, (1999) – Outline of Nigerian Legal System, Lagos, Grace Publishers Inc.

Kiralfy, A. K. R., (1960) – The English Legal System, London, Sweet and Maxwell

Nweke, S. A. N., (2002) – Principles of Crime Prevention and Detection in Nigeria,

Enugu, Ebenezer Productions.

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 POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 5: ENFORCEMENT OF JUDGMENTS

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Judgment for payment of Money
3.2 Judgment for Possession of Land or other Property
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
A party in whose favour a monetary judgment is given is known as the judgment
creditor and his opponent, the party against whom the judgment is given, is the
judgment debtor. The judgment extinguishes the rights of the judgment creditor in
respect of the judgment debt. The judgment creditor may enforce the judgment under
the Sheriffs and Civil Process Law and the judgments (Enforcement) Rules by any of
these methods, i.e. a writ of attachment and sale of property, garnishee proceedings, a
writ of sequestration, a writ of possession, a writ of delivery, etc.

2.0 OBJECTIVES
In this Unit, you should be able to know the following:
(i) What is enforcement of judgments?
(ii) To distinguish the judgment creditor from the judgment debtor.
(iii) Conditions under which the plaintiff may enforce the judgment.

3.0 MAIN CONTENT

3.1 Judgment for payment of money:
This may be enforced by:-
(i) A writ of fife: directing the Sheriff to seize the debtor’s goods or properties through
bailiffs for sale in satisfaction of the debt. Thus, executing the writ may attach and sell
–
(a) Any moveable property to which the judgment debtor is entitled but which is not in his
possession or subject to a lieu or right of some other person to the immediate possession
of the property, and

124
(b) Any shares in any public company or corporation to which the judgment debtor is
entitled. The attachment of such movable property or shares affected under an order of
court by delivering an office copy of the order to any person bound by it.
(ii) A Charging Order:
May be made over the debtor’s land, shares or other property for payment of the debt.
When the money is not paid, such property may be sold upon application to court, in
order to satisfy the debt.
(iii) A writ of Sequestration:
Commands and empowers two or more commissioners to be appointed by the court for
the purpose to enter upon all the immovable property of the judgment debtor, to collect
the rents and profits of the immovable property and also to take possession of all the
goods and movable property of the judgment debtor, until the debtor clears his
contempt or the court makes an order to the contrary.
(iv) Appointment of a receiver:
Over the debtors property to take over income such as rent and apply it to pay off the
judgment creditor and so forth.
(v) A Garnishee Order:
May be made to attach money which the debtor has with a third party, such as a bank,
so that a credit balance on the debtor’s bank account will be diverted from him and paid
to the judgment creditor. A plaintiff usually apply to court for a garnishee order nisi
which is directed to the bank and the debtor, requiring the bank to send a representative
to attend court to show why the money or a part of it should not be used to pay the
judgment creditor.

(vi) Attachment or earnings:

Earnings may be attached to pay debt. Where a debtor is in employment, a judgment
creditor may obtain an order directing the debtor’s employer to deduct a specified sum
from the defendant debtor’s wage or salary and pay it into court for the plaintiff.
Attachment is not available against the profit of a self-employed person.

3.2 Judgment for Possession of Land or other Property:

Where a judgment is given or an order is made for the recovery of land or for the
delivery of possession of land, in an action other than one between landlord and tenant
under the Recovery of Premises Law, the judgment or order is enforceable by a writ of
possession in a prescribed form addressed to the Sheriff. Thus, judgment for the
possession of land or other property may be enforced by:-
(i) A writ of possession
(ii) A vesting order and so forth
(iii) Judgment for Delivery of Goods may be enforced by a writ of delivery, or an order of
specific performance, and so forth.

4.0 CONCLUSION

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 In this Unit, we have discussed Enforcement of Judgments. In its introduction we have
discussed judgment creditor and judgment debtor respectively. We have also dealt
upon judgment for payment of money and judgment for possession of land or other
property. Thus, we conclude that there are two types of writ of attachment and sale of
property. One relates to goods and chattels (movable property) the other relates to
immovable property.

SELF-ASSESSMENT EXERCISE
Within the Nigerian judicial system how can judgments be enforced?

5.0 SUMMARY
When judgment has been entered in favour of a party, the judgment if not satisfied
within the time frame by law, appealed against or otherwise arrested, the plaintiff may
enforce the judgment under the Sheriffs and civil process law and the judgments rules.

6.0 TUTOR MARKED ASSIGNMENT

What is enforcement of judgments? Distinguish the judgment creditor from the
judgment debtor

7.0 REFERENCES/FURTHER READING

Akintunde Obilade O., (1990) – The Nigerian Legal System, Owerri, Spectrum Law
Publishing.

Ese Melami, (1999) – Outline of Nigerian Legal System, Lagos, Grace Publishers Inc.

Kiralfy, A. K. R., (1960) – The English Legal System, London, Sweet and Maxwell.

126
 POL. 124 NIGERIAN LEGAL SYSTEM

MODULE 7
UNIT 1: An Outline of Criminal Procedure in Nigeria
UNIT 2: Classification of Offences
UNIT 3: Criminal Procedure in the Magistrate Court
UNIT 4: Preliminary Inquiry
UNIT 5: Summary Trial

UNIT 1 AN OUTLINE OF CRIMINAL PROCEDURE IN NIGERIA

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 What is Criminal Procedure?
3.2 The Criminal Code and Penal Code
3.3 Statutes Establishing Tribunals
3.4 Procedure under the Criminal Procedure Act and Laws
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
The main sources of the law of criminal procedure are the Criminal Procedure
Ordinance (in force in Ogun, Ondo and Oyo States), the Criminal Procedure Act (in
force throughout the country as Federal Law with respect to Federal matters and in
force in Bendel State as state Law), the Criminal Procedure Law of Eastern Nigeria in
force in Anambra, Cross River, Imo and Rivers states, the Criminal Procedure Law of
Lagos State and the Criminal Procedure Code in force in Bauchi, Benue, Borno,
Gongola, Kaduna, Kano, Kwara, Niger, Plateau and Sokoto States. Thus, there are two
broad classes of matters that come to court, and these are civil matters, requiring civil
mode or procedure of trial, and criminal matters, requiring criminal mode or procedure
of trial.

2.0 OBJECTIVES

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 In this unit, you should know the following:
(i) The meaning of Criminal Procedure
(ii) The Reasoning behind Criminal Procedure
(iii) The Classification of Offences
(iv) That Preliminary inquiry is not a trial
(v) Indictable and non-indictable offences
(vi) The importance of the division of offences into Indictable and non-indictable
offences.

3.0 MAIN CONTENT

3.1 What is Criminal Procedure?
Criminal Procedure is the method or procedure of commencing, conducting and
concluding criminal proceedings or matters in court. The sources of the rules regulating
procedure in Nigerian courts are mainly the criminal procedure Act and its equivalent
laws in the Southern States, Criminal Procedure Code and its equivalent laws in the
Northern states. Other sources which provide some criminal procedure rules are, the
Constitution, Criminal Code and the Penal Code, Statutes establishing tribunals.

However, the Criminal Procedure Act and its equivalent laws apply and regulate
criminal procedure in Southern states of Nigeria where the Criminal Code Act and its
equivalent laws apply, while the Criminal Procedure Code and its equivalent laws apply
and regulate Criminal Procedure in northern states of Nigeria where the Penal Code and
its equivalent laws apply. The 1999 Constitution contains some rules of Criminal
Procedure, which must be observed in the course of charging and prosecuting a suspect
for an offence, which requirements, if ignored may lead to the whole criminal
proceedings becoming a nullity.

3.2 The Criminal Code and Penal Code:

Under the Criminal Code and the Penal Code, the criminal procedure is that certain
offences cannot be prosecuted.
(i) Without the consent of the Attorney General, for instance, the offence of sedition.
(ii) Certain offences cannot be prosecuted after the time limited by law. An example is the
offence of sedition, which cannot be prosecuted after the expiration of six months after
its commission if it was a continuous act. The failure of the prosecution to observe these
procedures usually leads to a nullity of the whole proceedings.

3.3 Statutes Establishing Tribunals:

Statutes establishing tribunals, court martial and other special courts may stipulate its
own procedure and practice which have to be observed, together with the procedures
stipulated by the Criminal Procedure Act. A tribunal is a master of its own procedure;
provided it observes the rules of natural justice or fair hearing. For this reason, the
general rule of law, is that, a tribunal and similar courts are usually the master of their
own procedure.

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 Thus, tribunals and like courts usually determine their own procedure. However, such
procedure must not contravene the rules of fair hearing or natural justice, which is a
basic requirement of anybody that adjudicates any matter, or who acts in a judicial or
quasi-judicial capacity. Anybody who acts in a judicial or quasi-judicial capacity must
act in accordance with the rules of natural justice or fair hearing.
3.4 Procedure under the Criminal Procedure Act and Laws:
The Criminal Procedure Act and equivalent law regulate criminal procedure in the
southern states. The content of the criminal procedure Act is reproduced as follows:
Section:
1. Short little
2. Interpretation
3. Arrest
10-16 Arrest without warrant and procedure thereon
17-20 Bail on arrest without warrant
21-27 Warrant of arrest and general authority to issue
28-29 Execution of warrant of arrest, etc.

SELF ASSESSMENT EXERCISE

In a criminal procedure how can a crime be classified?

4.0 CONCLUSION
In this unit, we have discussed the introduction the concept of criminal procedure, the
Criminal Code and Penal Code, the Statutes establishing tribunals, and procedure under
the Criminal Procedure Act and Laws. Thus, we conclude that a warrant of arrest is not
to be issued in consequence of a complaint unless the complaint is one made on oath by
the complainant himself or by a material witness. Information filed in a high court
contains essentially a statement that a person is charged before the high court with a
specified offence.

5.0 SUMMARY
Where a compliant has been made to a magistrate’s court that person has committed an
offence, and an application has been made to the magistrate for the issue of either a
summons commanding the person to appear before the court for the purpose of the
complaint or a warrant for the arrest of the person, the magistrate may issue a summons
or warrant to compel the appearance of that person before him. The summons is
directed to the person accused of having committed the offence.

6.0 TUTOR MARKED ASSIGNMENT

(I) Explain Criminal Procedure, its sources and the Criminal Procedure Act and Laws.
(ii) What do you understand by the Statutes Establishing Tribunals?

129
7.0 REFERENCES/FURTHER READING
Akintunde Obilade, O. (1990) - The Nigerian Legal System, Owerri, Spectrum
Law Publishing

Ese Melami, (1999) - Outline of Nigerian Legal System, Lagos Grace Publisher Inc.

Kiralty, A.K.R., (1960) - The English Legal System, London, Sweet and Maxwell.

Nnanyelugo Okoro and Aloysius - Michael Okolie, (2004) - Law, Politics and Mass
Media in Nigeria, Nsukka, Prize Publishers.

130
 POL. 124 NIGERIAN LEGAL
SYSTEM

UNIT 2 CLASSIFICATION OF OFFENCES

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Federal and State Control of Criminal Proceedings
3.2 Indictable and Non-indictable offences
3.3 The importance of the division of offences
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings

1.0 INTRODUCTION
Following out Digest of Criminal Law, all offences against the criminal laws of the
Federal Government are Federal Offences, such might be drug related offences,
smuggling, armed robbery, currency offences etc. Most serious ones are usually listed
in the schedule. A state offence is one, which is against the criminal laws of a state.
However, offences may be classified in two ways such as indictable and non-indictable
offences, felonies, misdemeanors and simple offences.

2.0 OBJECTIVES
In this unit, you should be able to know the following:
(i) What classification is all about
(ii) The important of classification
(iii) What are felonies, misdemeanors and simple offences, and their importance?

3.0 MAIN CONTENT

3.1 Federal and State Control of Criminal Proceedings
The Federal Attorney - General controls all criminal proceedings as regards federal
offences. He can delegate this function to a state’s Attorney General. Similarly, the state
Attorney General can delegate it to the Federal Attorney-General. Of course, it follows
by courtesy or comity through letters regatory or delegatory that one state Attorney
General to control the criminal proceedings within his own jurisdiction. In the absence
of such delegation, one cannot control the proceedings belonging to another, if he does,
a quo warrantor may be entered against him and the proceedings nullified. Offences
may be classified in two ways as follows:
(i) Indictable offences
(ii) Summary conviction offences or non-indictable offences.

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3.2 Indictable and non-indictable offences
Both types of classification are important for the purpose of the law of criminal
procedure in the southern states. Neither type of classification exists in the law of
criminal procedure in the northern states.

By indictable offences, we refer to an offence which on conviction may be punished by

a term of imprisonment exceeding two years, or which on conviction may be punished
by imposition of a fine exceeding four hundred naira.

3.3 The importance of the division of offences

The importance of the division of offences into indictable and non-indictable offences
lies in the method of trial and in the power of arrest for an offence. Meanwhile,
summary conviction offence refers to any offence which is not indictable, any offence
punishable by a magistrate’s court on summary conviction. Indictable offences are
triable on information but they may be tried summarily in certain circumstances. While
non-indictable offences are triable summarily and normally not on information.
The power to arrest a person without warrant for an offence depends in part on whether
the offence is an indictable offence.

A Felony: is any offence which is declared by law to be a felony, or is punishable,

without proof of previous conviction, with death or with imprisonment for three years
or more.
A misdemeanor: is any offence, which is declared by law to be a misdemeanor, or is
punishable by imprisonment for not less than six months, but less than three years.
A simple offence: any office, which is neither a felony nor a misdemeanor, is a simple
offence. However, the classification of offences into felonies, misdemeanors and simple
offences is important first of all for the purpose of determining the power of arrest for
the offence.
Secondly for the purpose of determining criminal liability or punishment with respect to
attempt to commit an offence, preparation to commit an offence, neglect to prevent the
commission of an offence, conspiracy to commit an offence, and being an accessory
after the fact to an offence, and thirdly for the purpose of determining the ambit of the
power of the court to grant bail to an accused person with respect to an offence.

SELF-ASSESSMENT EXERCISE
What are felonies, misdemeanors and simple offences, and their importance.

4.0 CONCLUSION
We have to conclude by reminding ourselves the areas of which we have discussed. We
have touched upon the Federal and State control of criminal proceedings, different

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divisions of offences, such as, indictable in certain offences, summary conviction in
certain circumstance. We also discussed a felony, a misdemeanor, and a simple offence,
but most importantly, the essence of classifications of offences. Thus, we conclude that
the importance of the classification of offences lies in the method of trial and in the
power of arrest for an offence.

5.0 SUMMARY
Thus, once an offence is declared by law to be punishable on summary conviction, it
cannot be an indictable offence no matter how heavy the prescribed punishment may
be.

6.0 TUTOR MARKED ASSIGNMENT

(i) What are indictable and non-indictable offences?
(ii) Explain a felony, a misdemeanor, and a simple offence.

7.0 REFERENCES/FURTHER READING

Akintunde Obilade, O., (1990) - The Nigeria Legal System, Owerri, Spectrum Law
Publishing.

Nnanyelugo Okoro and Aloysius-Michael Okolie, (2004) - Law, Politics and Mass
Media in Nigeria, Prize Publishers.

Nweke, S.A.N., (2002) - Principles of Crime Prevention and Detection in Nigeria,

Enugu, Ebenezer Productions.

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 POL. 124 NIGERIAN LEGAL
SYSTEM

UNIT 3 CRIMINAL PROCEDURE IN THE MAGISTRATE COURT

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 An Indictment or Information
3.2 Commencement of Proceeding
3.3 Proofs of Evidence
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings

1.0 INTRODUCTION
A trial on indictment or information in the High Court is really an elaboration or
amplification of a summary trial at the magistrate court. In its pure essence, it is not
much different from a summary trial, except for the elaboration of certain procedures.
However, the salient stages of criminal procedure at the High Court for trial on
information are what is an indictment or information? Proofs of Evidence, Arraignment
and plea, plea of guilty, plea of not guilty, prosecution, submission of “No case to
answer,” Defence, closing address, judgment, discharge, and finding of guilt and
sentence.

2.0 OBJECTIVES
In this unit, you should know the following:
(i) An indictment or information
(ii) Examples of an information
(iii) Proofs of Evidence
(iv) Arraignment and plea, etc.

3.0 MAIN CONTENT

3.1 An Indictment or Information:
An indictment or information is accusation of crime brought by the Department of
Public Prosecution against an accused for trial in the High Court. An indictment or
information, is a Criminal charge brought against a person by the Attorney General or
any of his subordinate legal officers on behalf of the state or country and which is for
trial at the High Court.

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An Information – Examples:
In the High Court, information of crime is usually prosecuted in the name of the
relevant state or in the name of the country, as the case may be. For example, using
John the Bad, as an accused person, the information may be brought thus:
(i) State v John the Bad:
Criminal proceedings brought by the state are usually prosecuted in the name of the
state in a state High Court.
(ii) Federal Republic of Nigeria v John the Bad:
This is sometimes shortened in law reports as Republic v John the Bad. Criminal
proceedings brought or on behalf of the Federal Government of Nigeria are usually
prosecuted in a Federal High Court. Some public agencies also prosecute crime in their
own name, etc.

3.2 Commencement of Proceeding:

The summons is directed to the person accused of having committed an offence. It must
state concisely the substance of the complaint and require him to appear at a certain
time and place being, normally, not less than 48 hours after the service of the summons
before the court to answer to the complaint and to be further with according to law.

In certain circumstances, notwithstanding the issue of a summons, the presence of the

accused may be dispensed with. For example, under section 100 of the Criminal
Procedure Law of Lagos State where a magistrate issues a summons in respect of an
offence punishment by a fine not exceeding N100 or by imprisonment for a term not
exceeding six months or by both such fine and imprisonment, the magistrate may, on
the application of the accused if he sees reasons to do so dispense with the personal
attendance of the accused provided that the accused pleads guilty in writing or appears
by a legal practitioner and pleads by the legal practitioner.

However, where such application is made by an accused with respect to an offence

punishable by only a fine not exceeding N100, the magistrate must grant the application
provided the accused himself pleads guilty in writing or appears so pleads by a legal
practitioner.

A warrant of Arrest: is not to be issued in consequence of a complaint, unless the

complainant is one made on oath by the complainant himself or by a material witness.

An information file: in a High Court contains essentially a statement that a person’s

charged before the High Court with a specified offence.
The information begins with a number of information followed by the following items
in the order in which they are set forth:
(a) The title of the case e.g “the state v John Penn.”
(b) The name of the High Court, e.g. “In the High Court of Lagos State.”

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 (c) The name of the Judicial Division, e.g “The Ikeja Judicial Division.”
(d) The date of preparation of the information, e.g “the 26th day of June, 2008.”
(e) A statement of information to the effect that the accused is charged with a specified
offence before the court on a specified date, e.g. “At the sessions holden at Ikeja, Lagos
state, on the 26th day of June, 2008, the court is informed by the Attorney-General on
behalf of the state that John Penn is charged with the following offence, etc.
Information must contain a description of the offence charged or where there are more
than one offence charged in the same information, a description of each offence in a
separate paragraph called “a count.”

3.3 Proofs of Evidence:

The proofs of evidence or evidence in proof means the names, addresses and written
statements of the witnesses, that the prosecution wishes to call and the list of exhibits, if
any, that the prosecution wishes to put in evidence. Photocopies of the list of the
witness, the written statements they made to the police and the list of exhibits, if any,
are usually attached to the information filed by the state.

The real essence of attaching these proofs of evidence is to put the accused on notice as
to the nature of the case against him, to enable him take steps to prepare and state his
defence. This is a fundamental right under the fair hearing provision of the Constitution.

SELF-ASSESSMENT EXERCISE
Discuss what these mean: an information and Proofs of Evidence

4.0 CONCLUSION
In this unit, we have discussed the introduction of criminal procedure in the magistrate
court. We have as well dealt with an indictment or information, commencement of
proceeding, made references, and finally, discussed proofs of evidence. However,
where information contains more than one count, the counts must be numbered
consecutively.

5.0 SUMMARY
Bringing a person arrested without a warrant before the court upon a charge in
accordance with the appropriate criminal procedure enactment, in the case of
proceedings before a magistrates court.
6.0 TUTOR MARKED ASSIGNMENT
(i) Summons is directed to the person accused of having committed an offence;
Comment:
(ii) Explain the following:
(a) A warrant of Arrest
(b) An information of Arrest
(c) Proofs of Evidence, and
(d) Examples of an information

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7.0 REFERENCES/FURTHER READING
Akintunde Obilade, O. (1990) - The Nigerian Legal System, Owerri Spectrum Law
Publishing.
Ese Melami, (1999) - Outline of Nigerian Legal System, Lagos, Grace Publishers Inc.

Kiralty, A.K.R., (1960) - The English Legal System, London, Sweet and
Maxwell.

Nweke, S.A.N., (2002) - Principles of Crime Prevention and Detection in Nigeria,

Enugu,
Ebenezer Productions.

137
 POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 4 PRELIMINARY INQUIRY

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Contents
3.1 Preliminary Inquiry into an indictable offence
3.2 The procedure of a preliminary inquiry
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
A preliminary inquiry is an initial or preliminary examination of an indictable offence
allegedly committed by an accused person. It is a first screening or hearing held by a
magistrate to determine whether a person charged with an indictable offence triable by a
High Court, should be held or committed for trial at the High Court. It is a preliminary
inquiry into an indictable offence to determine whether there is prima facie evidence to
warrant committing the accused for trial at a High Court.

2.0 OBJECTIVES
In this unit, you are expected to learn the following:
(i) What is preliminary inquiry?
(ii) The procedure of a preliminary inquiry
(iii) That it is conducted by a magistrate
(iv) That a prima facie case must be established against the accused.

3.0 MAIN CONTENT

3.1 Preliminary Inquiry into an Indictable Offence
It is a preliminary hearing held in a magistrate court in respect of indictable or serious
offences triable in the High Court during which the state is required to produce
sufficient evidence to establish that there is probable cause or reason to believe;
(i) That a crime has been committed, and
(ii) That the accused person committed it
Thus, a preliminary inquiry before a magistrate is essentially, a first screening of the
criminal charges brought against an accused. The basic function of a preliminary
inquiry is to determine whether there is sufficient evidence to hold a trial at the High
Court.

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 Its function is thus not to try the accused. It is simply an inquiry aimed at determining
whether there is sufficient evidence to justify a trial of an accused. Further, a
preliminary inquiry does not require the same degree of proof, nor quality or evidence
that is necessary during trial or for conviction. In Nigeria Criminal Procedure Law, as in
England before a person is tried for an indictable or serious offence at the High Court, a
preliminary examination of the charge is usually held, before a magistrate to determine
whether or not, the accused person should be committed for trial at the High Court at
public cost and with the attendant hurdles.

The proceedings open with the magistrate causing the substance of the complaint to be
stated to the accused. The accused is not required to make any reply to the complaint
and if he does, the magistrate must not record the reply. The next stage is the
examination by the magistrate of witness for the prosecution. When anyone of the
witnesses is being examined, no other witness should be present unless the magistrate is
of opinion that it is necessary or conducive to the ends of justice that any particular
witness should be permitted or required to be present during the whole or any part of
the examination of any other of the witnesses.

Therefore, magistrate must take into consideration the statement made by the accused
and any evidence given by him or his witnesses before deciding whether to commit the
accused for trial. Where there is a conflict between the evidence for the accused and the
evidence against him, the magistrate must consider the evidence against the accused to
be sufficient to put the accused on his trial if that evidence is such as, if un contradicted,
would raise a probable presumption of the guilt of the accused.

3.2 The Procedure of a Preliminary Inquiry:

A preliminary inquiry, usually takes the following procedure.
(i) The prosecution calls witnesses who give evidence under oath, which is known as a
deposition.
(ii) The witnesses may be crossed examined by the accused and or his counsel and they
may be re-examined by the prosecution.
(iii) The evidence of every witness is written down by the magistrate and read out to such
witness in the presence of the accused person and the witness, the magistrate, and the
interpreter sign the evidence or deposition, if any was used.
(iv) The witnesses are bound over to attend the trial in the event of a trial
(v) The accused, that is, the defence may at this stage submit that there is “No case to
answer” and that the charge ought to be dismissed.
(vi) If the evidence or charge is not dismissed, the charge is written down, read and
explained to the accused.
(vii) The magistrate then asks the accused, whether he wishes to say anything in answer to
the charge, there and then caution and explains to the accused, that he is not obliged to
say anything, unless he wishes to and that whatever he says will be written down and
may be used in evidence at the trial.

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(viii) What the accused person says is written down and read over to him, he signs it and the
magistrate signs it, including an interpreter if any was used.
(ix) The accused and his witnesses, if any, given evidence on oath, are cross-examined and
may be re-examined by the defence
(x) The defence counsel may address the court once again
(xi) The magistrate then reads his decision in respect of each of the count of the charge or
information.

Thus, if the magistrate decides that there is a prima facie case to answer, the accused
person is then committed for trial at the High Court. He may or may not be on bail in
the meantime, depending on whether or not it is a bailable offence. If a prima facie case
is not made out to warrant sending the accused for trial at the High Court at the usual
public expense and effort, the charges and evidence are dismissed and the accused is
discharged and acquitted or discharged but not acquitted as the case may be.

SELF-ASSESSMENT EXERCISE
Can you say that in Nigeria the procedure of a preliminary inquiry is observed?

4.0 CONCLUSION
If the magistrate considers the evidence against the accused insufficient to put him on
his trial, the magistrate must immediately order that the accused be discharged with
respect to the charge under inquiry but the discharge is not a bar to any subsequent
charge in respect of the same facts. If the magistrate considers the evidence sufficient to
put the accused on his trail, he must commit him for trial before the High Court. In that
case, the magistrate must until the trial, either grant the accused bail or send him to
prison for safe keeping.

5.0 SUMMARY
The procedure for the summary trial by the High Court of indictable offences with
respect to which there has been a committal for trial in the High Court is, in general,
similar to the procedure for the summary trial of non-indictable offences in magistrates’
courts is different.

6.0 TUTOR MARKED ASSIGNMENT

Explain vividly the preliminary inquiry into an indictable offence.

140
7.0 PREFRENCES/FURTHER READING
Akintunde Obilade O., (1990) - The Nigerian Legal System, Owerri, Spectrum Law
Publishing.

Ese Melami, (1999) - Outline of Nigeria Legal System, Lagos, Grace Publishers Inc.

Kiralty, A.K.R., (1960) - The English Legal System, London, Sweet and
Maxwell

Tappan P.W., (1960) - Crime, Justice and Correction, New York, McGraw Hill Book
Co.

141
 POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 5 SUMMARY TRIAL

CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 After Committal for trial
3.2 Non-indictable offences by magistrates court
3.3 Indictable offences
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
Summary trial is all trials in the High Court without the requirement of information and
a special procedure. All trials in the magistrate court and summary conviction in any
other courts.

A summary trial is a legal proceeding, which is short and concise. It is immediate

prosecution in a prompt and simple manner, without the necessity and niceties of filing
information in criminal proceeding or the exchange of pleadings between parties in civil
proceedings. All bailable offences or minor crimes triable in the magistrate courts and
other inferior courts are usually tried summarily. All trials in magistrate courts and
other inferior courts whether they are civil or criminal proceedings are tried summarily.

2.0 OBJECTIVES
In this unit, you should be understanding the following:
(i) Non-indictable offences and indictable offences
(ii) Simple offences and summary trial
(iii) After committal for trial

3.0 MAIN CONTENT

3.1 After Committal for Trial:
Normally, when a magistrate, for trial in the High Court, commits an accused person,
the trial is on information. But under section 364 of the Criminal Procedure Law of
Lagos state, where after such committal, an information against the accused is not file
on or such committal an information against the accused is not file n or before the day
fixed for the trial or no duly authorized person appears before the High Court to
prosecute the case on behalf of the state, the court must try the case summarily.

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 The court must direct the registrar to charge the accused with the offence in respect of
which he has been committed for trial.
Thus, it is open to the court to direct the registrar to charge the accused with any other
offence, which is the opinion of the court, is founded on the facts disclosed in the
deposition.

3.2 Non-indictable offences by Magistrates Court:

Where a charge, not being one with respect to which there is a committal for trial in the
High Court, is to be tried summarily by the High Court of Lagos State or a non-
indictable offence is to be tried by a magistrate’s court in the state, the first stage at the
hearing is the calling of the case for hearing. If the defendant appears and the
complainant does not appear, the court must, as a general rule, dismiss the complaint,
provided that it is satisfied that the prosecution had had due notice of the time and place
hearing. However, there are two exceptions to this rule. First, where the personal
attendance of the defendant has been dispensed with under section 100 of the Criminal
Procedure Law of Lagos State, it is that section and not this rule that applied.

Secondly, where the court has received a reasonable excuse for the non-appearance of
the complaint or his representation and for that reason or for other sufficient reason
thinks fit to adjourn the hearing of the case to a future day upon such terms as it thinks
just, the rule does not apply. Thus, when a defendant to whom a summons is directed
fails to appear or plead guilty under section 100 of the Criminal Procedure Law of
Lagos State and no sufficient excuse is offered for his absence the court, if satisfied that
the summons has been duly served, may issue a warrant known as a bench warrant for
his arrest or if not satisfied that the summons has been duly served may adjourn the
hearing of the case to a future day in order that proper service may be effected.

3.3 Indictable Offences:

A magistrate’s court may, normally, with the consent of the accused try summarily an
adult accused, charged before the court with an indictable offence other than a capital
offence. However, where a law officer conducts the prosecution, the magistrate must
not deal summarily with the offence without the consent of the law officer. In order to
satisfy the requirement of obtaining the consent of the accused to summary trial, the
magistrate must inform the accused of his right to be tried by the High Court and he
must ask the accused whether he consents to the case being tried summarily by the
magistrate’s court.

If the magistrate fails to inform the accused of his right to be tried by the High Court,
the trial is null and void unless the accused consents at any time before he is asked to
make his defence to be tried summarily.

Thus, until a magistrate assumes the power to deal with an indictable offence other than
a capital offence summarily, he must deal with it in accordance with the rules governing

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 preliminary inquiry into an indictable offence. He must assume such power if during
the hearing of the charge he is satisfied that it is expedient to deal with the case
summarily.

SELF-ASSESSMENT EXERCISE
Explain with examples what a bench warrant means.

4.0 CONCLUSION
In this last unit, we have discussed the issues in the introduction. We also discussed
important issues, such as, after committal for trial, non-indictable offences by
magistrate court, and finally, indictable offences. Thus, all trials before magistrate
courts are summary trials. In the high courts, most trials are on information, that is
trials other than summary trials, a few are summary trials.

5.0 SUMMARY
It should be pointed out that if in the course of the hearing of a complaint before a
magistrate’s court it happens that the court is of the opinion that the offence, on account
of its aggravated character or other sufficient reason, is not suitable to be displayed of
by such court, the magistrate’s court may, instead of adjudicating, hold a preliminary
inquiry into the charge and commit the accused for trial before the High Court.

6.0 TUTOR MARKED ASSIGNMENT

Kindly explain the following:
(1) a. Non-indictable offence
b. Indictable offences
c. After committal for trial

(2) Explain what happens in the event of the defendant appearance in the court but the
complainant does not appear.

7.0 REFERENCES/FURTHER READING

Akintunde Obilade O., (1990) - The Nigeria Legal System, Owerri, Spectrum Law
Publishing.
Ese Melami, (1999) - Outline of Nigerian Legal System, Lagos, Grace Publishers Inc.

Tappan P.W., (1960) - Crime, Justice and Correction, NY, McGraw Hill Bk Co.

144
 POL. 124 NIGERIAN LEGAL SYSTEM

MODULE 8

UNIT 1: Legal Aid and Advices in Nigeria

UNIT 2: Legal Aid Council
UNIT 3: The Necessity of Legal Aid
UNIT 4: How to improve the Service of the Legal Aid Council in Nigeria

UNIT 1: LEGAL AID AND ADVICES IN NIGERIA

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The Recipients of Legal Aid.
3.2 Who provides Legal Aid
3.3 The scope of Legal Aid
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Reading

1.0 INTRODUCTION
Legal aid is the provision of free Legal Services, which is rendered to persons who by
reason of their disposable income or circumstances cannot afford legal services. The
Constitution provides for the provision of Legal Aid to indigent persons.

2.0 OBJECTIVES
In this Unit, you should be able to understand the following:-
(i) The meaning of Legal Aid.
(ii) Those who commonly enjoy Legal Aid.
(iii) The scope of Legal Aid.
(iv) The importance of Legal Aid.

3.0 MAIN CONTENT

3.1 Legal Aid and Advice in Nigeria.
Legal Aid is commonly made available to several categories of persons which includes:

145
(i) Low-income earners, whose disposable income or capital fall within the financial limit
prescribed by the legal aid Statute.
(ii) Indigent persons.
(iii) Disabled persons who have no visible or reasonable means of livelihood, and
(iv) Other incapacitated persons, such as, prisoners, detainees, other kinds of inmates, such
as inmate of a lunatic asylum, destitute, financially stranded immigrants and other
persons who by reason of their circumstances have no earnings or are not earning a
reasonable income.

The Scope:
The scope of legal services usually provided by government through the Legal Aid
Council and by non-governmental organizations and individual legal practitioners
includes:
(i) Legal advice or counseling;
(ii) Legal representation in criminal and civil proceedings, and
(iii) Other Legal assistance as may be necessary.

However, an applicant for legal aid must show he has reasonable grounds for:
(i) Asserting a claim, or
(ii) Defending a claim.

3.2 Who provides Legal Aid?

The provider or Legal Aid in other countries, as well as in Nigeria may be categorized
as:-
(i) Government, which usually creates a public body or agency such as the Legal Aid
Council, by means of a law to administer legal aid to persons who need it.
(ii) Non-governmental Organisations (NGOs) and bodies, and
(iii) Individual legal practitioners and so forth.

3.3 The Scope of the Legal Aid Act

The Legal Aid Act 1976 establishes the Legal Aid Council as a body corporate with
perpetual succession to offer legal aid in certain proceedings to persons with inadequate
resources as provided by the Act. The Legal Aid Council is administered by a Council,
which is headed by a Chairman and with representatives of several government
agencies as members. However, the Council has a Director-General as Chief Executive
Officer, who is responsible for the day to day running of the affairs of the Council.

The Council is empowered to establish such State branches in the States for the
purposes of its services as the National Council of Ministers may from time to time
direct. The National Council of Ministers may give directions of a general character to
the Council with respect to its functions, which directions the Council shall carry out.
The Act defines the scope of legal aid and advice to be given to applicants for legal
assistance. It also establishes a fund for the Council known as the Legal Aid Fund for

146
 the activities of the Council. The Federal and State governments, philanthropic persons
and bodies are free to make contributions to this fund.

The Act specifies that legal aid shall be granted only to persons whose income do not
exceed N1,500 per annum. However, the Council has a discretion to offer legal aid to a
person whose income exceeds N1,500 per annum on a contributory basis. In other
words, the Council reserves the right to ask, such a person to make financial
contribution in respect of the funding of the legal assistance as the Council may
determine.

The Act provides that the Council shall not in anyway be liable to pay costs, however,
awarded against a person granted legal aid. In ascertaining the income of an applicant
for legal aid; the Council is required to take into account the personal income and the
real property of an applicant in order to determine his qualification for legal aid.

Thus, the Council is required to make an annual report to the National Council of
Ministers with respect to its operations, transactions and statement of accounts, through
the Attorney General of the Federation.

The Attorney General of the Federation is empowered to make regulations generally for
the better carrying on of the purposes of the Council. Finally, there is an interpretation
section, where various words and terms used in the Act are defined.

SELF-ASSESSMENT EXERCISE
How has Legal Aid mediated for the less privileged in the society?

4.0 CONCLUSION
We have discussed in this Unit, the introduction of Legal Aid, those who are entitled to
receive legal aid, the scope. However, legal practitioners for the time being serving the
National Youth Service Corps (NYSC) may offer their services to the Council free of
charge without payment.

5.0 SUMMARY
The Council is empowered to maintain a list of legal practitioners willing to act for
persons receiving legal aid for different purposes, for different courts and for different
districts. The provisions for miscellaneous and supplementary matters, makes the Act a
workable one. These include the prohibition of the disclosure of information furnished
to the Council.

6.0 TUTOR MARKED ASSIGNMENT

(i) What do you understand by the term Legal Aid, and who provides Legal Aid?
(ii) Review the Legal Aid Act.

147
7.0 REFERENCE/FURTHER READING
Ese Melami, (1999) – Outline of Nigerian Legal System, Lagos, Grace Publishers Inc.

Kiralty, A. K. R., (1960) – The English Legal System, London, Sweet and Maxwell.
Tappan, P. W., (1960) – Crime, Justice and Correction, NY, McGraw Hill Bk. Co.

POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 2: LEGAL AID COUNCIL

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Legal Aid Regulations
3.2 Non-Government Organizations
3.3 Individual Legal Practitioners
4.0 Conclusion
5.0 Summary

148
 6.0 Tutor Marked Assignment
7.0 References/Further Readings

1.0 INTRODUCTION
The Legal Aid Council is an agency of the Federal Government. It was established by
Legal Aid Council Decree No..56 of 1976. The Council is regulated by the Legal Aid
Act of 1976, which is an Act to provide for the establishment of the Legal Aid Council,
which is responsible for the operation of a scheme for the grant of free legal aid in
certain proceedings to persons with inadequate resources. The Legal Aid Act is an Act
with 20 sections, some of which sections are broken into sub-sections. The Act also has
two schedules. The First Schedule deals with supplementary provisions relating to the
Council, the Council, while the second Schedule stipulates the proceedings in respect of
which legal aid may be given to an applicant. The Act also contains a subsidiary
legislation known as the Legal Aid Regulations, which makes provision for how legal
aid should be dispensed by the Council.

2.0 OBJECTIVES
In this Unit, you will know the following:
(i) How the Legal Aid Council renders legal aid to needy persons.
(ii) Legal aid Regulations.
(iii) How NGOs render or offer legal aid, etc.

3.0 MAIN CONTENT

3.1 Legal Aid Regulations:
The Act contains a subsidiary legislation known as the Legal Aid Regulations which
makes regulations with respect to circumstances where legal aid may be given,
application for legal aid, eligibility for legal aid, the determination of the means and
needs of an applicant for legal aid, the valuation of the asset of an applicant,
contribution of money to the Council by an applicant whose income exceeds N1,500
per annum, choice of a legal practitioner by an applicant from the list of legal
practitioners rendering services to the Council in respect of applicants benefiting from
legal aid, receipt of monies by legal practitioners, discretionary powers of the Council
to terminate legal assistance, production of file in respect of other matters, notice of
termination of legal aid, limited liability of the Council, approval of the Council before
the briefing of a legal practitioners, termination of legal aid with the consent of the
Council of the Council, terms and conditions of matters assigned.

3.2 Non-Governmental Organizations (NGOs):

Non-governmental Organizations (NGOs) also offer legal aid. These bodies are:
(i) Civil rights groups.
(ii) Women Associations, such as the National Council of Women Societies (NCWS).
(iii) Religious bodies, such as, Churches.
(iv) Friendly or humanitarian societies and so forth.

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 These bodies may have a committee, which holds legal clinics, and give legal advice or
other forms of legal assistance to members and to deserving non-members. Among
non-governmental organizations, civil rights groups are in the forefront of the provision
of legal aid to persons in need. Among the civil right groups in Nigeria are:
(i) Civil Liberties Organization
(ii) Campaign for Democracy
(iii) Constitutional Rights Project
(iv) Committee for the Defence of Human Rights
(v) Universal Defenders of Democracy
(vi) Shelter Rights Initiative and so forth

3.3 Individual Legal Practitioners:

Time and time again, individual lawyers who are moved by the plight of an accused or
person in need of legal aid have rendered legal assistance to such person, whether or
not, by way of dock brief, out of compassion and charitable convictions in the interest
of public good.

SELF-ASSESSMENT EXERCISE
Discuss how the Legal aid Regulations are in consonance with the Nigerian state.

4.0 CONCLUSION:
In this Unit, we have discussed the Legal Aid Regulations, Non-governmental
Organizations, and Individual Legal Practitioners. However, it is pertinent to remind
ourselves again that the Legal Aid Council is an Agency of the Federal Government,
and it was established by the Legal Aid Council Decree No.56 of 1976, as amended by
Decree No. 22 of 1994regulating or making provision for how legal aid should be
dispensed by the Council.

5.0 SUMMARY
The Legal Aid Council renders legal aid to needy persons in respect of the proceedings
in a court or tribunal wholly or partly in respect of crimes of the certain descriptions, or
as near to those description as may be, respectively in any criminal code or panel code.

6.0 TUTOR MARKED ASSIGNMENT

What are the duties of NGOs and the Individual Legal Practitioners in ensuring that
legal aid reaches to the needy?

7.0 REFERENCES/FURTHER READINGS

Akintunde Obilade O., (1990) – The Nigerian Legal System, Owerri, Spectrum Law
Publishing.

Ese Melami, (1999) – Outline of Nigerian Legal System, Lagos, Grace Publishers Inc.

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Kiralty, A. K. R., (1960) – The English Legal System, London, Sweet and Maxwell.

Tappan, P. W., (1960) – Crime, Justice and Correction, NY, McGraw Hill BK. Co.

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 POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 3: THE NECESSITY OF LEGAL AID

CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 The necessity of Legal Aid
3.2 Reasons why people do not seek legal Remedy
3.3 The problems of the Legal Aid Council
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings

1.0 INTRODUCTION
Law and the judiciary or the legal system is an effective means of protecting human
rights and fundamental freedoms and for guarding against political, economic and
social injustice. However, the legal machinery may be hampered by a combination of
problems, such as, structural, legal and administrative.

2.0 OBJECTIVES
By the end of this Unit, you should be able to know the following:
(i) Why a breach of due process occur;
(ii) Reasons why people do not seek legal remedy;
(iii) Reasons for the problems of the Legal Aid Council;
(iv) Why legal aid is a necessity; etc.

3.0 MAIN CONTENT

3.1 The Necessity of Legal Aid:
When a violation of human right occurs and the victim cannot seek or obtain redress,
due to one or a combination of problems, a breach of due process occurs. A breach of
due process occurs in different forms. It may be abuse of power, impunity of members
of the armed forces, misuse of discretion, criminal punishment without fair trial,
arbitrary arrest, detention without trial or bail, unexplained or unfair denial of bail,
torture, cruel, inhuman and degrading treatment, unfair dismissal, discrimination and
any unfair legislative, executive or judicial act which contravenes the idea of justice, are
all breaches of due process.

One commonest way people deal with problems is to deny its existence. However, in
Nigeria as in other nations of the world today, the necessity of providing legal aid for

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 indigent persons who are in need cannot be over-stressed. It is a social, economic and
political necessity, for the emancipation good and advancement of society. Thus, the
identification of this need led to the establishment of the Legal Aid Council by the
Federal Government of Nigeria in 1976, as an official or public legal aid scheme to
provide legal aid to indigent persons in need of legal assistance.

3.2 Reasons why people do not seek legal Remedy:

Some of the factors which often prevent people, especially, low income earners, from
seeking or obtaining redress include:
(i) Lack of Funds;
(ii) Illiteracy;
(iii) Ignorance;
(iv) Intimidation; and so forth.
3.3 The problems of the Legal Aid Council:
The problems of the Legal Aid Council in realizing the lofty objective of rendering
legal assistance to all indigent person in need of legal aid across the country, include:
(i) The limitation of the scope of legal assistance, the council is by law permitted to
give. This narrow mandate makes its services to lack impact and relevance.
(ii) Inadequate funding by government and philanthropic bodies and persons.
(iii) Inadequate facilities to carry out its functions.
(iv) Inadequate personnel.
(v) Lack of nearness to the people. Most offices of the council are located in the
Federal and State capitals and their services and addresses are hardly advertised.
People do not know where the offices are located; as a result, people are
therefore unaware of the Council and ignorant of its services.

Therefore, there is difficulty in reaching the people who need the services of the
Council and vice versa. The Council relies mainly on application from persons seeking
aid, references from courts, police, prisons and direct contacts for its out reach.

SELF-ASSESSMENT EXERCISE
Given the problems Legal Aid faces currently how can it effectively address the
problems of the needy.

4.0 CONCLUSION
However, all over the country, the activities of the Council must be intensified. The
Council must have definite direction and focus. Its services must have depth and
impact. On the other hand, government must at all times strive to improve the welfare
of the people in line with the Fundamental objectives and Directive Principles of State

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 Policy, contained in Chapter 2 of the 1999 Constitution of the Federal Republic of
Nigeria. Thus, the government must mobilize the people and also invest in
infrastructure, which will help to empower the people, to be in a position where the
average person, can have easy access to the basic necessities of life.
5.0 SUMMARY

However, the goals and objectives of this lofty reasoning for establishing the Legal Aid
Council by the Federal Government of Nigeria in 1976, would be realized only when
there is increase of hope in a person, improvement of awareness and intellect of a
person. When people are freed from diseases and dependence, when a person’s zeal for
life is enhanced, only when a person feels enthusiastic about the future, etc.

6.0 TUTOR MARKED ASSIGNMENT

(i) When do you think that all breaches of due process occur?
(ii) In 1976, the Federal Government of Nigeria, established the Legal Aid Council
as a matter of expediency. However, has this lofty objective been achieved?

7.0 REFERENCES/FURTHER READING

Akintunde Obilade, O., (1990) – The Nigerian Legal System, Owerri, Spectrum Law
Publishing.
Ese Melami, (1999) – Outline of Nigeria Legal System, Lagos, Grace Publishers Inc.

Kiralty, A. K. R., (1960) – The English Legal System, London, Sweet and Maxwell.

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 POL. 124 NIGERIAN LEGAL SYSTEM

UNIT 4: HOW TO IMPROVE THE SERVICES OF THE LEGAL AID

COUNCIL IN NIGERIA
CONTENTS:
1.0 Introduction
2.0 Objectives
3.0 Main Content
3.1 Improving the Legal Aid to the people
3.2 The Role of other Legal Aid Providers
4.0 Conclusion
5.0 Summary
6.0 Tutor Marked Assignment
7.0 References/Further Readings

1.0 INTRODUCTION
The aims and objectives of the Legal Aid Council are lofty. Achieving its objectives is
a necessity in evolving an equitable and just society. Some of the factors that will help
improve the rending of legal aid to the people includes, reformation of the Legal Aid
Act by way of amendment to widen its scope of legal aid, to enable it make impact, etc.

2.0 OBJECTIVES
By the end of this Unit, you should know the following:
(i) Why the NBA has not done well in rendering legal aid to the needy persons.
(ii) Why the services of other legal aid providers are necessary.
(iii) What to be done for our society to maintain its sense of fairness, etc.,
3.0 MAIN CONTENT
3.1 Improving the Legal Aid to the People:
Some of the factors that will help the rendering of legal aid to the people include:
(i) Reformation of the Legal Aid Act by way of amendment to widen its scope of
legal aid, to enable it make impact.
(ii) Review and increase of the numbers of proceedings in respect of which legal aid
may be given.
(iii) Increase funding by government and philanthropic bodies and persons.
(iv) Employment of adequate staff, other than external legal practitioners.
(v) Provision of more offices and adequate facilities.
(vi) Increased enlightenment campaign in order to overcome public ignorance and
create awareness. Public and private media organization should be encouraged
to donate time and space regularly as a social service to promote the council and
its services.
(vii) Minor jobs should be handed to young and inexperienced lawyers for a start to
enable them learn, whilst experienced lawyers are given the more serious
matters, which attract stiff penalty.

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 3.2 The Role of Other Legal Aid Providers:
Non-governmental bodies that are in the legal aid field are indeed playing a great role
and are rendering a vital social service. They are helping directly or indirectly to evolve
an equitable and fair society. Indeed, they are nation builders and are partners in
progress with government. However, there is always room for improvement and to do
more. Therefore, non-governmental organizations, which are into legal aid, especially,
civil rights groups and the Nigerian Bar Association (NBA) should strive to:
(i) Extend their services to the States, and the grass root, apart from Lagos, a few
other big cities and have a truly national coverage and render their services
without discrimination or favour, and
(ii) Public and Private media organization should donate time and space to help legal
aid whilst legal aid bodies should come up with programmes on the mass media to
educate and enlighten the people on their rights and duties to the country.

The Nigerian Bar Association (NBA):

The Nigerian Bar Association is a body, which recognizes the need for legal aid to the
indigent. Article 2 (d) of its Constitution emphasizes, “The encouragement of the
establishment and maintenance of a system of prompt and efficient legal advice and aid
for those person in need therefore but who are unable to pay for same”. However, the
NBA has obvious advantages over other bodies, in that, it is a truly widespread and
grass root organization. It must be in the forefront and continue to ensure political,
economic and social justice and protection of human rights.

The Nigeria Bar Association has without doubt, a vital role to play in the protection of
human rights. It is in a good position to do so, because it has branches in almost all the
judicial divisions of High Court of justice in Nigeria. It has a ready grass root
constituency and can very well play the role of the watchdog of government actions and
human rights. Thus, the very nature and calling of lawyers, and the social essence and
relevance of the NBA is to protect the rights of all persons.

Why the NBA has not lived up to its obligations?

However, the main reasons why the NBA has not done well in rendering legal aid to
needy persons include:
(i) The problem of funding legal aid. The cost of it must be borne by someone.
(ii) Over 80% of lawyers come from low income homes. They have to provide for
themselves and support their families, so that even when they want to act on
humanitarian grounds, they are constrained, and
(iii) The problem of conservatism among members, to the new and liberal idea of
legal aid.

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However, despite these problems, the NBA must be in the vanguard of legal aid, for this
is its field or profession and endeavour to have a human rights committee at every
branch.

SELF-ASSESSMENT EXERCISE
Why are the services of other legal aid providers necessary?

4.0 CONCLUSION
We have discussed the role of other legal aid providers, such as the Nigerian Bar
Association, and the Non-governmental Organizations (NGOs) and the constraints
hampering the effective rendering of the lofty ideas in maintaining the sense of fairness
in our society. But, most importantly, we have discussed and suggested on how to
improve the services of the Legal Aid Council of Nigeria.

5.0 SUMMARY
Legal aid to indigent persons remains a crucial human rights problem. Not all the
victims have the means to pursue redress.

6.0 TUTOR MARKED ASSIGNMENT

(i) Legal aid to indigent persons remains a critical human rights problem; suggest
how to effectively maintain the sense of fairness in our society.
(ii) The Nigerian Bar Association is a body, which recognizes the need for legal aid
of the needy; explain why the NBA has not lived up to its obligation in this
respect.

7.0 REFERENCES/FURTHER READING

Akintunde Obilade, O., (1990) – The Nigerian Legal System, Owerri, Spectrum Law
Publishing.

Ese Melami, (1999) – Outline of Nigerian Legal System, Lagos, Grace Publishers Inc.

Kiralty, A. K. R., (1960) – The English Legal System, London, Sweet and Maxwell.

157