INTRODUCTION TO LEGAL METHOD 1

LAPONISM
PUL 101: LEGAL METHOD 1

Course Title:
LEGAL METHOD 1

Course Writer:
LAPONISM

Course Coordinator:
Dr. Fayokun
Department of Law,
Faculty of Law,

Obafemi Awolowo University

Ile-Ife, Nigeria

2017
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Topic Page
What is Law 3
Theories of the Law 6
Law and Morality 10
Types & Classification of Law 11
Types of Law 11
Classification of Law 12
Sources of Law 15
Received English Law 17
Nigerian Legislation 19
Case Law / Judicial Precedent 21
Customary Law 22
Hierarchy of Court 44
What is Legal Reasoning 46
Legal Reasoning in Judicial Process 50
Methods of Social Control 55
The Legislative Process 59

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WHAT IS LAW?
Law is a notoriously slippery and elusive concept that has defiled Comprehensive and all-embracing and
universally acceptable definition. Lawyers, philosophers and even other social scientists have spent
sleepless nights trying to unravel the mystery surrounding the definition of law. This attempt to find an
acceptable definition is motivated by the obvious fact that law is the engine that propels a smooth running
if there entire mechanism for the administration of the modern society. Thus, for effective application of
legal principles and rules in resolving contemporary issues, a definition is no fun a vital sort because
lawyers have various and conflicting ideas of how to resolve this problems, there are individual
Philosophical convictions and ideological inclinations tend to determine the definition of what law
exactly means. This is more visible in the application of law by the court, we are informed with the
justification that a conservative minded judge judges with religious leanings and aristocratic background
will obviously differ in outlook and therefore in decision from one of radical agnostic middle class make
up and this will affect not only the decisions on points if law but also on questions of fact.

Besides, law regulates social relations that are dynamic in nature. Its definition cannot afford to be static.
It is this factor that makes the definition of law appear to be an attempt to fetch waster with a basket, it
cannot hold. According to Okunugba: "nobody including the lawyer have been able to give or will give a
generally acceptable definition of law." Because of the controversy surrounding the definition of law, it is
being proposed that we limit ourselves to a few definition presented by learned authors. And inspire if
what we have said, after examining the works of learned authors, we will still make attempt what might
be thought a working definition. It is being proposed by Cicero who presented a definition of law which
one might agree or disagree with but which lawyers of all generations and all countries with elegance and
pride have always referred to this great philosopher. Law is the highest reason embedded in nature which
commands what should be done and forbids the contrary. “lex ratio sumnan insita innatura quae jubet ea,
tacienda sunt prohibitique contraria." This definition is religiously adhered to by supporters of the natural
law school of jurisprudence. In particular and quotes by others as a mark of recognition and excellence.

On his part, sir Edward Coke as the perfection of "reason." while Charles Dickens in Oliver twist refer to
law as "a ass, a idiot".
In Plato's republic, through the character Tracy Marcus, one gets the idea that behind any law that must
be obeyed by all members of a given community stands force, power and might. This definition no doubt
contains a vital ingredient which lends validity to law, namely coercion.

However, Professor Tumanov sees law as a vital component of social reality. The relevance of this
definition is obvious, law is seen as a regulator of social relations which in actual called law into
existence. It is difficult to agree with prof Tumanov that law is a component of social reality because law
does not exist in a vacuum. It is the existence of concrete social relations that call it into being. It is the
expression of economic relation that exists in a given society. Law also reflects other material and
immaterial form of relations in a society. Law therefore is an indispensable mechanism for guaranteeing
the smooth running of production, distribution and exchange.
“What you do about disputes is the law”

Karl N. Llewellyn(1892-1962)

“the collective term for the rules of conduct for … living in a legal order.”

Wortley

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Generally law means the following;
 A rule
 A rule of behavior. A code of conduct.
 The rules and regulation of a particular country.
 The rule usually made to legislate
 The whole system of rules of a country.
FUNCTIONS OF LAW
Specific laws are made to achieve a particular objective in the society. For example, the Criminal
Code was enacted to regulate crime in the society, the Company and Allied Matters Act to regulate the
formation of companies and so on. However, there are also general functions of law in totality. Some of
these general functions are:
1. Definition and Regulation of Social Relationships
2. Identification and Allocation of Official Authority
3. Dispute Settlement and Remedies
4. Change of Law
The above would be examined one after the other.
Definition and Regulation of Social Relationships: This means that the law helps to define the kinds of
relationship among individual members of the society that would be recognised by it. For instance, under
the Marriage Act, a valid marriage is a union between a man and a woman. Thus, unions between
couples of the same sex are not recognised in the Nigerian Legal System.
Furthermore, the Constitution provides in S.40 that there is freedom of association between members of
the society. However some other laws like the Company and Allied Matters Act provide for steps to be
taken before a company could be registered as such and is recognised by the law as a distinct legal person.
In all, the law regulates the relationship between members of the society in order to prevent associations
or relationships that would end up being harmful to the society.
Identification and Allocation of Official Authority: Another function of law is that it helps to grant
authority in those chosen by the society whether expressly or indirectly. For example, the 1999
Constitution establishes the Legislature, Executive and Judiciary in the provisions of SS.4, 5 and
6 respectively. The provisions not only establish them, their specific duties are also provided for.
Dispute Settlement and Remedies: In the course of interaction amongst members of the society, there is
always bound to be strife between members. The law comes in situations like this to provide for the
procedures in which these issues can be resolved and if need be, the provisions of remedies for the breach
of the rights of members of the society.
The law achieves this through the instrumentality of the judicial system.
The method of dispute resolution adopted by the society depends on its size and complexity. If it is a
small and simple society, disputes would be resolved in a way that would ensure continued relationship
among the members. If it is a complex society in which parties have no need for further relationship, the
disputes would be resolved in a way that apportions blames and grants remedies as adequately needed.

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Change of Law: Another function of law is that it provides methods by which the laws can be modified
in order to meet the needs of the changing times. For example, the Constitution in S.4vests in the
legislature the power to make laws for Nigeria. This means they can re-enact laws and correct anomalies
in them. The specific processes to be followed by the legislature in enacting laws for the federation are
provided for by the Constitution in S.58.
Also, the Constitution provides in S.9 the procedures to be followed in amending its content. The
provision of methods for amending laws goes a long way to end ambiguity as to how the laws should be
modified to suit the needs of the society.

Characteristics of Nigerian Legal System

A. Duality
The colonial influence during its formative years and the subsequent imposition of English laws.
Nigerian legal system has acquired a dual structure comprising customary and English law.
Islamic law, which has a wider application in the northern state is for all practical purposes
treated as customary law.
B. External Influence
Nigerian law borrowed heavily from diverse external sources beginning with the influence of
Islamic law also with the English law or rules and Australia laws like Criminal Code/
Matrimonial Act, also the Penal Code of Sudan and so on.
C. Diversity
It is linked with the above two characteristics is the geo-cultural diversity that is so much part of
the Nigerian legal system. It can be said to be caused by the heterogeneity of the country‘s ethnic
grouping (250 ethnic groups).
D. The System of Precedents
The tradition of stare decisis, which follows that the decision should be binding authority that is
the earlier decision of a court.
E. Hierarchy of Courts
The hierarchy of courts is the arrangement of courts in the method through which appeal flows. If
the judgment at the lower court is not satisfying, an appeal can be made to the higher court in
order to get redress and justice. I would highlight the courts starting from the lowest.
F. Fusion of Legal Profession
Legal profession in Nigeria are trained as barristers and solicitors by the university and at Law
school. They are then admitted to the bar as solictors and an advocate of the supreme court of
Nigeria, combining the duty of both callings. In England both profession are separate.
G. Accusatorial or Adversary System
The adversarial system or adversary system is a legal system used in the common law countries
where two advocates represent their parties' case or position before an impartial person or group
of people, usually a jury or judge, who attempt to determine the truth and pass judgment
accordingly.
H. Military Influence
The intervention of the military government in Nigeria’s pplitics has left an indelible mark on its
legal system. This regimes assume executive and legislative power but very limit to judicial
functions that is limited to adjudication of justice.

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THE THEORIES OF THE LAW
Although a definition of law has been given previously, it is at best an ad-hoc definition. It can be said
that there are as numerous definitions of law as there are lawyers. This section deals with the
understanding of law according to the perspectives of different people.
These views are subscribed to by people in a particular school of thought/jurisprudence. These school of
thoughts/jurisprudence can also be rightly referred to as the different theories of law.
There are a lot of theories of law but only a few popular ones would be outlined. They are:
 The positivist school.
 The pure theory of law
 Natural Law School
 Historical school
 Sociological School
 Utilitarian School
 Functional School
 Realist School
The above-mentioned theories of law would be further expatiated upon below.
The Positivist Theory of Law
This theory of law is spearheaded by John Austin. He proposed the command theory of law which is also
regarded to as the positivist school. According to him in his book, The Province of Jurisprudence
Determined, he defined law as “a command set by a superior being to inferior beings and enforced by
sanctions.”
By this definition, it means that the only things that can be regarded as law are those that are enacted as
such by the person authorised to do so. The definition has the following elements:
 The existence of a definite sovereign.
 The sovereign is without legal limitation in the exercise of his power.
 The subjects must be in the habit of obeying him because of his coercive power to impose
sanctions.
The positivist theory of law has been criticised on numerous grounds. First, not all laws are couched as
commands. For example, the provisions contained in Chapter II of the 1999 Constitution which deals with
the fundamental and directive principles of state policy is not binding on the government of the Nation.
This is considering the fact that they are not justiciable by the provision of S.6(6)(c) of the 1999
Constitution.
Another criticism is the fact that positive law is only concerned with the fact that the sovereign enacts a
law. It is not concerned with whether or not the law is moral or acceptable to the society.
Also, the idea of an uncommanded commander who has no legal limitations would not be applicable in
today’s world. Even if it is a military regime, the military is till bound by the provisions of the laws it
enacts. For example, in the case of Ojukwu vs. Governor of Lagos State, the action of the Military
governor in evicting the defendant off his property without following due process was held to be ultra
vires and null and void by the court.
Finally, not all human beings obey the law because of the sanctions attached to it. Some people just don’t
contravene the law because it is their nature. For example, some people abstain from murder not just
because of its punishment but because they find the killing of a fellow human being repulsive.

The Pure Theory of Law

This theory of law is led by Professor Hans Kelson. It is of the view that law is a system of norms
accepted by the society to be binding. Each of these norms trace their validity to a higher norm until it
gets to the grundnorm. The grundnorm is the norm from which other norms get their validity.
For example, murder is unlawful because it can be traced to the provision of S.315 of the Criminal Code.
The Criminal Code is valid because it was enacted by the legislature. The legislature’s powers to make
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laws is valid because it is provided for under S.4 of the 1999 Constitution. The Constitution is also valid
because it originates from the people and is accepted by them.
This theory of law has been criticised because it posits that a law is valid if it satisfies the requirement of
being backed by a higher norm. It does not concern itself with the morality or immorality of the said law.
Another criticism of this theory is due to the fact that it is not always easy to trace the grundnorm in a
given society. The assertion that the Constitution is the grundnorm is one based on false logic. This is due
to the fact that it is said that the constitution gets its power from the people. But in the Nigerian situation,
we are not sure if it is the people that provided the constitution or the military government.
Also, a grundnorm is only effective as long as it is respected by the people it seeks to govern. If it loses
the confidence of the people through an instrumentality of a revolution or a coup d’état, it would become
effective.
A practical example is the fact that the 1999 Constitution provides in S.1(2) that no one can operate the
government of Nigeria except in accordance with the provisions of the Constitution. However, when there
is a successful coup, this section and a host of others are removed by the military government in power.

Natural Law Theory

The natural law theory of law is espoused by people like Zeno, Thomas Aquinas and Grotius. They are of
the view that law can be deduced by man from reason as to what is right or wrong. This theory of law is
of the position that there is an innate tendency in all humans helping to distinguish right from
wrong. Natural law is simply what is “right, just and fair”.
Natural law has been the basis for an array of liberation struggles. It was invoked by the Americans in
their struggle of liberation from Britain, by the French during their revolution, in the abolition of slave
trade and is now being used to justify homosexuality.
However, there are numerous criticisms for this theory of law. First is the fact that unless natural law is
promulgated as a law, it does not carry the force of law and would not be enforceable. At best, it would be
considered as a moral rule. A very good example is the fact that the Criminal Code which operates in
Southern Nigeria doesn’t criminalise adultery. However according to S.387 and 388 of the Penal Code,
which operates in Northern Nigeria, adultery is an offence.
Also, the dictates of natural law are usually seen subjectively. What is fair, equitable and just to one
person may not be fair, equitable and just to another person. This issue is what has made natural law to be
referred to as an harlot.
A very good example of this is in the clamour for homosexuality. The homosexuals and their supporters
are of the view that it is only fair and just for them to be allowed to have sexual intercourse with anyone
they choose. Those who oppose it on the other hand are of the opinion that homosexuality is against the
order of nature and should thus be prohibited.
Thus, it would be problematic if everyone in the society is left to choose what is right and wrong on the
basis of how he feels.

Historical Theory of Law

This theory was propounded by Friedrich Carl Von Savigny, a German aristocrat. The theory was
propounded in order to counter the influence of the natural theory of law in overthrowing monarchs in
17th and 18th century Europe.
The theory is of the view that law should be made in accordance to the custom of the people. This custom,
referred to as volkgeist, is the spirit of the people and what binds them together. Thus, attempts should not
be made to make laws that would deviate from the customs and way of life of the people.
Von Savigny was an aristocrat, thus it is evident that he was interested in maintaining the status quo.
One of the criticisms against this school is the fact that if it is followed dogmatically, it could hinder
radical reforms which would turn out to be good for the society. One can only imagine how backward the
society would be if strange customs like slavery and absolute monarchy were not abolished.

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Another criticism of this theory of law is the fact that it is not at all times that customs are fair and just.
There are a lot of customs that segregate a particular class of people. If this theory is to be followed to the
latter, it would put these people in perpetual bondage.
This could be seen as the reason for the Evidence Act to provide in S.18(3) that a custom would only be
applicable if it conforms to public policy, natural justice, equity and good conscience.
Sociological Theory of Law
The sociological theory gained prominence from the mid nineteenth century to the twentieth century. One
of its most prominent supporters was Eugene Ehrlich. According to this school, law is based on what
could be called the “facts of law”; how people acted. The way the society acts determines the kinds of
laws that would be laid down.
If the society by its actions fails to acknowledge a law, the law is doomed to fail as a means of socia l
control.
A very good example of this is the case of corruption in the Nigerian society. Despite the enactment of
many Acts like the Economic and Financial Crimes Commission Act and a host of others, corruption is
still viewed as a way of life in Nigeria. Virtually everyone has at a point in time given or received a bribe.
The different measures put in place to control corruption have obviously failed because the people do not
support the law by their actions.
The sociological school however also has its own share of criticisms. First, it is not all the time that
conduct influences the law. There are situations in which the law influences the conduct of members of
the society. For instance, vehicle owners register their vehicles because of the law mandating them to do
so.
Another criticism is the fact that it is quite risky to “go with the flow”. Just because every other person is
disobeying the law would not excuse an offender who is caught and Is being made a scape goat. The
present Dasuki armsgate scandal is a good example of this. Assuming but not conceding that he is guilty,
it would not be a valid excuse that the perpetrators should not be punished because virtually everyone in
government at that point was corrupt.
There is another variant of the sociological theory propounded by Roscoe Pound, former Dean of Harvard
Law School. According to him, there are limited resources in the society and thus, numerous competing
claims to those resources. It is then the aim of the law to balance these competing claims in such a way
that it would cause the least harm. This is done through the instrumentality of the courts.
The Utilitarian Theory of Law
This theory of law is championed by Jeremy Bentham. According to him, the purpose of the law is to
guarantee communal utility. Utility in this sense means that which affects the happiness of the people.
The law should always seek to promote the utility that would positively affect the larger part of the
society.
According to this school, there are four basic utilities: security, equality, liberty and abundance. The most
important one is security, followed by liberty and the remaining two. The law should always seek to
balance individual interest with that of the community.
For example, the law allows for the police to invade the privacy of a suspected armed robber, robbing him
of his liberty, in order to guarantee the security of the society.
One of the criticisms against this school is that it doesn’t specify a specific method for balancing the
interest of the individual and community.
The Functional Theory
This theory of law is championed by distinguished United States jurist, Oliver Wendell Homes Jr. His
view is that the law is what the courts say it is. He says the law should be viewed from the perspective of
the bad man. According to him, the bad man doesn’t give two hoots about legal theories, all he cares
about is what the court would decide in his situation.

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Thus, notwithstanding what is contained in the statutes, since it is the courts that interpret the law, the law
would be what the court pronounces it to be. This school also recognizes the power of the court to make
law when the statutes do not provide for a particular scenario or they are vague about it.
One of the criticisms against this school is that it only concentrates on the courts and ignores the
legislative and administrative authority. This is arguably erroneous considering the fact that the court
itself is a creation of statute; S.6 of the Constitution of the Federal Republic of Nigeria 1999(as
amended).

The Realist Theory of Law

This school is of American origin and is subscribed to by people like Oliver Wendell Holmes, Justice
Jerome Frank, John Chipman Gray and Karl Llewellyn. This school posits that the law is not just
what is in the books and decided cases. They are of the view that the judge and jury, in making their
decisions, are influenced by extraneous factors.
For example, if a judge that has been a victim of rape or is close to a victim tries an accused rapist, there
is every likelihood that she would not want him to go scot free due to her previous experience. Also, a
judge who is handling the trial of a former colleague or contemporary would be lenient compared to the
trial of a accused who isn’t related to him.
This school aims at reforming the judicial system. They are of the view that judges should constantly try
their best in order to be objective in deciding a particular case.
Which of The Theories of Law is the Best?
The above numerous theories have been explained and it can be said that all the schools are correct in
their own right. This is due to the fact that the definitions of law given are affected by the subjective
experiences of each of the jurist. A good example is Carl Von Savigny who supports the historical
school because he is an aristocrat and thus has an interest in maintaining the status quo.
The main idea behind the different schools can be summarized in one quick allegory of some blind men
who were told to identify an elephant by touching it. The one that touched the legs described it as a tree,
the one that touched the trunk called it a snake, the one for the body called it a rock and the one that
touched the tusk described it as a spear. All the blind men are correct in their own right, however, they
were also wrong.
In the light of this, it would be best to quote Professor Mrs Okunniga who stated:
” Nobody, including the lawyer has offered, nobody including the lawyer is offering and nobody
including the lawyer will ever be able to offer a definition of law to end all definitions.”

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LAW AND MORALITY
As previously stated, any means of social control which is not backed by law can at best be said to be a
moral rule. However, there is a two way relationship between the law and morality. Most laws evolve
from moral principles over time, making morality a very important influence on the laws of a particular
society.
This has made it paramount for the relationship between law and morality to be discussed. In doing this,
the meaning of morality would be expounded, the relativity of morality would be highlighted and the
relationship between personal liberty and public morals would also be highlighted.
Morality can be defined as the principles concerning right and wrong or good and bad behaviour. They
are principles used to evaluate the degree to which something is right or wrong, good or bad. Morality is
developed by the society over time in order to help check the activities of its members. A society without
morals would be unfathomable. This is due to the fact that if a society is without morals, it would find it
difficult to exist in the first place.
However, there is a problem inherent in morality. This is the problem of relativity of morality. What a
particular society might consider as immoral might be considered as normal by others. For example,
Islamic Law frowns on the charging of interests for loans. On the other hand, the charging of interest is
considered perfectly normal by the Western world.
It is due to this problem of the relativity of morality that law comes in to play an important role. The
purpose of the law here is to give the moral view of the predominant members of the society the backing
of the law. Once a moral rule is backed up by the law, all members of the society have to conform or they
would face the sanctions provided by the law. In most cases, the idea of morality supported by the law is
that of the predominant group in the society.
For example, in some Countries, homosexual marriages are recognised by the law because those societies
have a predominantly liberal population. In conservative societies like Nigeria, homosexual marriages
have been criminalised.
Another issue to be considered is that of individual liberty and public morality. In some societies,
indecent acts committed in private are not punishable. But when they are been displayed in public or are
being advertised, it would be punished by the law. A good example of this is the case of Shaw vs Director
of Public prosecutions (1962) AC 220.
In this case, Shaw had published a booklet called ‘The Ladies Directory’ which advertised prostitution.
He was charged with conspiracy to corrupt public morals. The last time anyone had been prosecuted
under this offence was in the 18th century. Shaw urged the court not to enforce the law because it was
outdated. The court disagreed with him and subsequently convicted him.
The above case is an example of where the law protects morality. If that particular offence is subsequently
removed by the legislature, corrupting public morality would only be a matter of morality not backed by
law.
In conclusion, the above has gone ahead to establish the relationship between Morality and law. The two
need each other as without morality, there would be no laws and without law, moral rules would not be
binding on members of society.

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TYPES AND CLASSIFICATIONS OF LAW
TYPES OF LAW
There are different meanings of the word law. Perhaps this is best conveyed by the view of Baron De
Montesquieu in his book, Spirit of the Law, where he wrote:
“Laws in the wider possible connotations are any necessary relation arising from a thing in nature. In this
sense, all beings have their laws; the Deity his laws, the material world it laws, the intelligence superior to
man its laws, the beasts their laws, man his law…”
From the above, it can be seen that law is used in multiple senses. Thus it is imperative for the different
types of laws to be considered. They are:
1. Eternal Law
2. Divine Law
3. Natural Law
4. Human or Positive Law

1. Eternal Law: The word eternal means something that would last forever. Eternal laws are laws that
have applied since the beginning of time and would exist till the end of time. These laws cannot be
changed. A very good example of eternal law is the law of gravity. From the inception of time, it has been
understood that what goes up must come down. This law would not be changed and is thus right to be
regarded as eternal.
2. Divine Law: Divine Law is referred to as laws made by a deity to govern the affairs of man. A good
example of divine law can be found in Islamic law as postulated in the Quran. These laws are said to be
given by God to the Prophet Muhammad in order to guide the affairs of man.
The logic behind the use of divine law stems from the fact that God, accepted as all knowing and all wise,
is in the best position to make laws for the use of mankind.
3. Natural Law: In the legal sense, natural law can be said to be law as espoused by the natural law
theorists. This law is said to be the law that is innate in all mankind and can be deduced through the use of
reason. For example, it is accepted in all cultures that murder is wrong and should be punished.
Natural law is said to be the guide which positive law must follow in order for it to be valid. If P ositive
Law is at variance with natural law, it could lead to injustice in the society.
4. Positive or Human Law: Positive Law can also be regarded as human law. These are laws made by
man in order to guide the conduct of members of the society. They are laws made by persons given the
authority to do so either directly or indirectly by the society. Legal positivism doesn’t concern itself with
morals. Once a law has been enacted by persons in authority, it is valid.
According to Professor HLA Hart, a positivist,
” Law is a command and there is no necessary connection between law and morals or law as it is (lex
lata) and law as it ought to be (de lege ferenda).”
Examples of positivist law include the 1999 Constitution, Company and Allied Matters Act, Banks
and Other Financial Institutions Act and a host of others enacted by man.

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CLASSIFICATIONS OF LAW
The classifications of law are the different categories into which all areas of law can be collated. A
particular classification of law encompasses all types of law but it distributes them according to a
particular unique characteristic.
The following are the major classifications of law:
1. Public and Private Law
2. Civil Law and Criminal Law
3. Substantive and Procedural Law
4. Municipal and International Law
5. Written and Unwritten Law
6. Common Law and Equity

1. Public and Private Law: Public Law can be defined as that aspect of Law that deals with the
relationship between the state, its citizens, and other states. It is one that governs the relationship between
a higher party — the state — and a lower one, the citizens. Examples of public law include Constitutional
Law, Administrative Law, Criminal Law, International Law and so on.
Private law, on the other hand, is that category of the law that concerns itself with the relationship
amongst private citizens. Examples include the Law of Torts, the Law of Contract, the Law of Trust and
so on.
2. Civil Law and Criminal Law: Civil law in this regard can be defined as the aspect of Law that deals
with the relationship between citizens and provides means for remedies if the right of a citizen is
breached. Examples of civil law include the Law of Contract, the Law of Torts, Family Law etc.
Criminal Law, on the other hand, can be referred to as that aspect of Law that regulates crime in the
society. It punishes acts which are considered harmful to the society at large. An example of criminal law
is the Criminal Code Act which is applicable in the Southern part of Nigeria.
When treating a criminal case, the standard of proof to be used is proof beyond reasonable doubt; S.135
Evidence Act 2011. Also, the burden of proof does not shift from the prosecution. What this means is
that before a conviction can be gotten, the state has to prove the commission of the crime to be beyond
reasonable doubt.
On the other hand, in civil cases, the standard of proof is on the balance of probabilities;S.134 Evidence
Act 2011. Also, the burden of proof shifts between both parties when they need to establish their case.
Judgement normally goes in favour of the particular party that has been able to prove its case more
successfully.
3. Substantive and Procedural Law: Substantive Law is the main body of the law dealing with a
particular area of law. For example, the substantive law in relation to Criminal Law includes
the Criminal Code Act and the Penal Code Act.
Procedural law, on the other hand, is law in that deals with the process which the courts must follow in
order to enforce the substantive law. Examples include the rules of the various courts and
the Administration of Criminal Justice Act 2015, which is the procedural law in relation to
the Criminal Code Act and the Penal Code Act.
4. Municipal/Domestic and International Law: Municipal/Domestic law is the aspect of law which
emanates from and has effect on members of a specific state. An example of a municipal Nigerian law is
the Constitution of the Federal Republic of Nigeria 1999(as amended) which applies in only Nigeria.
International law, on the other hand, is the law between countries. It regulates the relationship between
different independent countries and is usually in the form of treaties, international customs etc. Examples
of International law include the Universal Declaration of Human Rights and the African Charter on
Human and People’s Rights.

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It should be noted that according to the provision of S.12 of the 1999 Constitution (as
amended) International treaties cannot have the force of law in Nigeria except they are enacted by the
Nigerian National Assembly.
5. Written and Unwritten Law: A law would not be regarded as written just because it is written down
in a document. Written laws are those laws that have been validly enacted by the legislature of a country.
Unwritten laws, on the other hand, are those laws that are not enacted by the legislature. They include
both customary and case law. Customary Law as part of its basic characteristic is generally unwritten.
Case law, though written down in a documentary format, would be regarded as unwritten law based on
the fact that it is not enacted by the legislature.
An example of this is the good neighbour principle established in the case of Donoghue vs. Stevenson.
The principle posits that manufacturers of products should take utmost care in their manufacturing
activities to ensure that the consumption of their product doesn’t result in harm to the consumer. This
principle is not enacted in a statute but is a case law which is applicable in Nigerian Courts.
6. Common Law and Equity: In the legal sense, the term common law means the law developed by the
old common law courts of the King’s Bench, the Courts of Common Pleas and the Courts of Exchequer.
The English common law is regarded as such because it is law common to all parts of England. It grew
over time from the practices, customs and way of life of the people. It is largely unwritten. The first
common law judge was the King himself. People who had disputes usually brought them to the King to
settle them.
However, due to matters of state, the king didn’t have time to settle all cases. As a result of this, the king
appointed members of his court who were to settle disputes in his stead. These judges had the authority of
the king and any disobedience to them was treated as disobedience to the king and punishment was swift.
These different judges travelled the length and breadth of the realm to settle disputes. When they got to a
particular location, they applied the customary law in that location in order to settle disputes. Regularly,
these different itinerant judges would come together to compare the different customary laws they
encountered on their travels.
They discarded customs that were thought to be insensible and accepted those which were sensible. This
led to the conglomeration of different customs which were then applied all through the realm. This then
metamorphosed into the common law of England.
However, the common law was strict, formal and full of legalism. One example of this was in its system
of writs. If an action did not fit into a writ, there was no remedy for such action. Also, the only remedy
available in common law was that of damages.
Due to the harshness of common law, the people petitioned the King directly for judgement. The Lord
Chancellor, as the King’s Prime Minister, was the one that dealt with most of these petitions. His court
was called the Court of Chancery/Equity. The Lord Chancellor, was usually a bishop and thus, he applied
the principle of fairness and natural law in making his decisions.
Subsequently, there was conflict between the common law court and the court of chancery. This conflict
came to head in the Earl of Oxford’s case. In this case, the plaintiff was the assignee of a lease and he
built a house and planted a garden on the land. Subsequently, the defendant/owner of the land sought to
evict him from the land. The assignee thus sued and lost at common law, and he appealed to the court of
chancery.
The court of equity accepted his petition and allowed him to stay on the land. The reasoning of the Lord
Chancellor, Lord Ellesmere, was that by natural law, it was only fair and just for a person who builds a
house to be able to live in that house.
This judgement prompted Lord Coke, the Chief Justice of the King’s Bench to accuse the Lord
Chancellor of frustrating the rules of common law. The matter was brought to the King who referred it to
Lord Francis Bacon. Francis Bacon supported the court of equity and ruled that whenever there was a
clash between common law and equity, equity would prevail.

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This ruling however, did not help to completely solve the problem between the two courts. This was due
to the fact that the common law courts could only grant the remedy of damages and thus, anyone seeking
a different remedy would first pass through the common law courts before going to equity.
Over the years, the two systems were merged till finally, in 1875, the Judicature Act fused the two
systems into one court. However, although they are applied in one court, the rules of common law and
equity can be distinguished from each other. This is what prompts the statement “Although the two
streams now flow into one, their waters do not mix.”

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What are the Sources of Nigerian Law?
The law is an abstract term. In order to know what comprises the law, you have to derive it from various
places. These places from which the law is derived are aptly described as the sources of law. Sources of
law can be defined as the places to which a legal practitioner or a judge turns to in order to answer a legal
problem. They can be regarded as springboards from which law emanates. They are the various vehicles
through which the law is carried. The sources of Nigerian law can be divided into primary and secondary.
Primary sources of Nigerian law can simply be regarded as those sources whose provisions are binding on
all courts throughout Nigeria. They include:
1. Received English law
2. Case law
3. Nigerian legislation
4. Customary laws.
5. International laws.

Sources of Nigerian law denote where Nigerian law came from. The major question is that where did we
get the present laws that we now call our own? Did they fall from heaven? Where did we get them from?
We generally have six sources of Nigerian law they include:
1. The Received English law: This consists of the common law, doctrines of equity and statutes of
general application which were applicable in Britain by 1st January 1900. These were laws that we used
when we were colonised by Britain. The laws applicable in Britain were also applicable in Nigeria.
2. Nigerian Legislation: This is the most important of the sources of Nigerian law. This is because it is
Nigerian legislation that gives life to other sources of law. It is the pillar upon which the Nigerian legal
system rests. It consists of the exclusive list, concurrent list and residual list.
3. Case Laws: Summarily, these are laws that are developed by the courts and become binding according
to the principle of stare decisis/judicial precedent.
4. Customary law: These are the laws of the indigenous peoples of Nigeria prior to the advent of the
colonialists. However, they are only applicable in civil circumstances. The Customary Criminal law has
been abolished by various statutes like the Penal Code and Criminal Code.
5. Delegated Legislation: This is legislation made by other bodies that are not the legislature. However,
before this can be valid, the power to make these laws has to be vested in such person/body by the
legislature.
Due to the constraint of time and space, I shall only be examining Received English Law, Nigerian
Legislation and Case Laws
On the other hand, the secondary sources of Nigerian law are the indirect ways through which we get our
law. Save for law reports, secondary sources of Nigerian law are of persuasive authority in the law courts.
Law reports are only authoritative due to the fact that they serve as the vehicle through which judicial
precedent is carried. Examples of secondary sources of law are:
1. Law Reports

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2. Text Books and Treatises
3. Periodicals, Journals, and Legal Digests
4. Casebooks
5. Legal Dictionaries
6. Newspapers
The distinction between primary and secondary sources of law is very useful in determining authorities to
follow in the law courts. If a case is brought before a court and one party uses a primary source of law as
his authority while the other makes use of secondary sources, the scale of justice would tilt in favour of
the person who presents primary sources of law.
Secondary sources of law are only made use of whenever there are no primary sources of law to fall back
on.

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THE RECEIVED ENGLISH LAW
These are laws that were in operation in England and due to the reception of English law, they become
applicable in Nigeria. The reception of English law deals with the way the received English law was
accepted into the Nigerian legal system. The major reception act in Nigeria is the Interpretation Act. The
Interpretation Act receives English law in S.32 (1) which provides that the rules of common law, the
doctrines of equity and statutes of general application which are within the competence of the federal
legislature in existence before 1900 shall be in force in Nigeria.
However, S.32 (2) provides that their application is limited subject to Nigerian jurisdiction or when there
is a Nigerian federal law or court decision available. This was seen in the case of Labinjoh vs.
Abake where the application of the Infant Relief Act was rejected because there was already a local
legislation that covered that area. S.32 (3) allows for the alteration of the imperial laws in order to make it
applicable to the Nigerian situation. For example, where England is used, it would be replaced with
Nigeria, when the British currency is used it would be replaced with the Nigerian currency and so on. (For
more see Primary Sources of Law: Received English Law)
The Reception of English Law
Nigeria, as we all know, was colonized by Britain. Hence, it is trite that some elements of British law will
have a major influence on our legal system. The English law is made up of rules of common law,
doctrines of equity and Statutes of General Application. These English laws have been imported into the
Nigerian legal system. In fact, they make up the bulk of our law. The use of English Law in Nigeria is
backed up by the following authorities:
 Interpretation Act: By the provision of S. 32 of the Interpretation Act, the common law of
England, the doctrines of equity and statutes of general application that were in force on 1st
January 1900, will be in force in Nigeria.
 Supreme Court Ordinance: The Supreme Court Ordinance of 1914 also provided as follows:
Subject to the terms of this or any other ordinance, the rules of common law, doctrines of equity and
Statutes of General Application In force on January 1st 1900 shall be in force in the jurisdiction of this
court.
From the above, it can be seen that we inherited the common law of England, the doctrines of equity and
statutes of general application in force before 1900. Most people already have an idea of what common
law and equity are all about (If you don’t, see types and classifications of law). The ambiguous term here
is “statutes of general application. This meaning of this term would be explained below.
What is a Statute of General Application?
According to the Interpretation Act and the Supreme Court ordinance, statutes of general applications are
those that are in force in England on 1st January 1900. Unfortunately, this definition is not adequate. Due
to this, the courts have gone at length to elucidate on what Statutes of General Application entail.
In the case of Dede vs African Association ltd, the court held that although the Supreme Court ordinance
identified that Statutes of General Application are applied in England, nevertheless, it should be taken to
mean statutes applicable not just in England but throughout the United Kingdom.
In the case of Attorney General vs. John Holt and co ltd, Osborne CJ. Held that Statutes of General
Application are statutes that are applied by all civil and criminal courts and bind all citizens. He called
this a rough but not infallible test for the authenticity of a Statute of General Application.

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In the case of Lawal vs Younan, the court decided that the Fatal Accident Act of 1846 and the Fatal
Accident Act of 1864 are statutes of general application since they concern all citizens.
Finally, in the case of Young vs Abina, the West African court of appeal declared the land transfer act
1897 a statute of general application. This is because it applied to all persons who died after 1st January
1898 and it was in force on 1st January 1900.
It is worthy to note that Nigeria having got independence in 1960, the received English law is only of
persuasive authority in view of the fact that Nigeria is now a sovereign state and as such, Nigerian law is
supreme. Nigeria shall not be governed by any other person except in accordance with the provisions of
the constitution.
Also, the interpretation Act provides in S. 32(2) that these foreign laws would only apply in Nigeria to the
extent of local jurisdictions and local circumstances. For instance, the Supreme Court in the case
of Idehen vs idehen] refused to apply the Wills Act of 1837 (a statute of general application) since there
was a local law in place; the Wills Law of Western Nigeria.
Also, in the case of Alli vs Okulaja, the plaintiff sued the defendant for damages as a result of injuries
caused by the defendant’s negligence. The defendant moved a motion that proceedings should be stayed
until the plaintiff is examined by their doctor. The defendant relied on the English court of appeal case
of Edmeads vs Thames Board mills ltd where the judge allowed the defendant to examine the plaintiff.
Beckley J, however ruled that a decision of the court of appeal in England is not binding on a Nigerian
court. It is at best persuasive.

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NIGERIAN LEGISLATION.
What is Legislation?
Legislation can simply be understood as the law enacted by a body empowered to do so. It is the source of
law that most people are familiar with. It can be rightly regarded as the main source of law. In present day
Nigeria, legislation for the Federation is made by the National Assembly. This is backed up by the
provision of S. 4 (1) of the 1999 Constitution of the Federal republic of Nigeria (as amended) which
provides:
The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the
Federation, which shall consist of a Senate and a House of Representatives.
Legislation could either be Acts, Ordinances, Decrees, Edicts and laws. Acts are laws made by the central
legislature during a democracy. Ordinances are laws made by the central legislature before 1st Oct, 1954
(when federalism was introduced). On the other hand, decrees are federal laws made in a military regime,
edicts are state laws in a military regime while laws are state laws in a democracy.
Before legislation can be enacted in a democracy, it has to pass through some procedures as provided for
in the Constitution. On the other hand, in the case of A.G.F vs. Guardian Newspaper Ltd and Ors it was
decided by the courts that all it takes for a decree to be enacted is the valid signature of the military Head
of State.
All federal legislation till 31st January 1990 in Nigeria were consolidated in the Laws of the Federation of
Nigeria 1990. (L.F.N 1990). It was revised in 2002 and is now published as L.F.N 2004.
Delegated Legislation
Delegated legislation is law that is made by bodies other than those constitutionally recognised to make
laws. Delegated legislation is valid due to the fact that its authority is gotten via enabling statutes. An
enabling statute is one which is made by the legislature in order to delegate a certain power of legislation
to a body other than the legislature.
Legislation is also delegated to non-legislative bodies by provisions of the Constitution. For example, the
constitution in S.248 provides that the President of the Court of Appeal is empowered to make rules to
guide the practice and procedure of the court. There are similar provisions for the head of other courts
The rationale behind the delegation of legislation is due to the fact that the legislature cannot monitor all
facets of public life. There are people who are experts in a particular field, hence they would be more
qualified to make laws that would guide regulation in such areas. In the example presented above,
legislative power is given to judges in order to make laws guiding judicial proceedings. It would be very
tasking and redundant if the legislature is the one that has to make law for practice and procedure in the
law courts. Such activities are best left in the hands of experts.
It should be noted that a body to whom legislation has been delegated cannot delegate same to another
body without express permission from the legislature itself. This is encapsulated in the maxim “delegatus
non potest delegare” which means that you cannot delegate what has been delegated to you.
This is the most important source of Nigerian law (LEGISLATION). It is usually made by the legislature
which consists of the House of Representatives and the Senate. They are referred to as the National
Assembly by S.4 (1) of the Constitution. Legislation is classified into statute or subsidiary legislation.
Statutes are laws that originate from any chamber of the National Assembly.

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Subsidiary legislation are those that emanate from a body that is not the legislature. They can also be
called delegated legislation. These bodies are usually empowered to make law by an enabling statute of
the National Assembly. Subsidiary legislation can be called rules, legislation, by-laws, instruments, orders
etc. Also, a subsidiary legislation must not exceed the limit of the power delegated to it by the enabling
statute. Thus, subsidiary legislation is inferior to statutes. This means that a statute can repeal or amend
the power of a subsidiary legislation. (For more see: Primary Sources of Law: Legislation)
FORMS OF LEGISLATION
Legislation can be in form of ordinances, acts, laws, decrees or edicts. Ordinances are laws made by the
federal legislature before 1st October 1954. Acts are laws made by the National Assembly which is made
up of the House of Reps and the Senate. Laws are legislation made by a State House of Assembly.
Decrees are laws made by the federal military government while edicts are legislation made by state
military governments.
It should be noted that for any legislation to be valid, it should originate from the appropriate authority.
During the civilian regime, it is the National Assembly or State House of Assembly. In the military
regime, it is the Federal Military Government and State Military Government.
DIVISION OF LEGISLATIVE POWER.
These are divisions of legislation during a civilian regime. They are divided into:
• Exclusive List: These are laws which can be made only by the federal legislature. S4.(2) & (3) CFRN
1999(as amended). It is located in pt 1 2nd schedule.
• Concurrent list: These contain items that are within the legislative competence of the State House of
Assembly and federal legislature. S.4(4)(a) & S.4(7)(b) CFRN 1999 as amended
• Residual list: These are items that are left solely for the states to legislate upon. It should be noted that
there is not an item designated ‘Residual List’ in the constitution. However, it is implied from the
constitutional provisions. This is due to the fact that S.4(7) CFRN 1999 provides that the State House of
Assembly can legislate on matters that are not contained in the exclusive list and but they can legislate on
matters in the concurrent list. Thus, by implication they can also legislate on matters that are not in any of
the lists.
THE SUPERIORITY OF NIGERIAN LEGISLATION TO OTHER SOURCES
Nigerian legislation is the most important source of law because it is through Nigerian legislation that
other sources of law are validated into the Nigerian jurisdiction. This can be seen in S.32 interpretation
acts LFN 2004 which has to make sure that the Received English Law is accepted as law in Nigeria. Also,
S.27(1) of the High court of Lagos law validates customary law.
Also, Legislation takes life from other sources of law. For example, it abolished some customary laws
that dealt with slavery, witchcraft, trial by ordeal etc. For example S.207 to 211 of the Criminal Code
abolishes witchcraft and trial by ordeal
It can also modify other sources . It can also abolish customary law indirectly. For example, S.3 of the
Legitimacy Act modifies the Yoruba law of acknowledgement. It says that a child is not legitimate until
the mother is married, however, the Yoruba customary law says that as long as the child is acknowledged
by the father, he is not a bastard. Also, in the case of Labinjoh vs Abake, it was declared that an
indigenous law indirectly nullified the Infant Relief Act which is not a Nigerian legislation but a statute of
general application.

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CASE LAW/JUDICIAL PRECEDENT
Judicial precedent originates from the principle of stare decisis which means ‘let the decision stand’. It
means that similar cases must be treated alike. The reason for this is to achieve uniformity and certainty in
the administration of justice. Therefore judicial precedent can be defined as the decisions of the court
based on the material facts of a case, it could be called judicial precedent, stare decisis or case law. It is
the principle of law upon which a judicial decision is made.
It’s not all the aspects of a judgement that are relevant in determining the principle decided in a court. It is
the ratio decidendi that is relevant in determining the issue in court. However, the other parts of the
judgement are not entirely useless. The other parts of the judgement are referred to as obiter dictum.
Although an obiter dictum is not really a present judgement, in a later case, it can be adopted as a ratio
decidendi.
With all these, can it then be contended that judges make law? Yes, by all means, however, their law is
not legislation because it wasn’t passed by the National Assembly. Also,judicial precedents can either be
binding or persuasive. Decisions made by courts of higher jurisdiction are binding on courts of lower
jurisdiction. However, decisions by courts of co-ordinate jurisdiction are persuasive in most instances
except in some instances at the Court of Appeal.
FORMS OF JUDICIAL PRECEDENT
Judicial precedents may be:
• Original precedent: This is when the decision given by the judge is a new decision in which there are
no previous similar cases. An example is the case of Carlill vs Carbolic smoke ball co where an original
precedent as related to offer was established.
• Derivative precedent: This is where the case at hand simply extends the existing rule analogically to
cover a new situation.
• Declaratory Precedent: This means the law simply declares the existing rules. What it does is to re-
echo the existing rule to what is on ground. It helps to give weight to the precedent and invests it with
greater authority than it would have possessed if it stands alone. It also serves as a guide when it is not
possible to get to the original judgement. Declaratory precedent is very important because it is through
declaratory precedent that some decisions are weeded out. For example, if there are two conflicting
original decisions, it is the one that is re-echoed by declaratory precedent that would stand the test of time.
The other decision would be weeded out of the judicial system because it would be weaker.
In conclusion, it should be noted that without the hierarchy of courts and an efficient law reporting
system, the principle of stare decisis will be impracticable.

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CUSTOMARY LAW:
THE CHARACTERISTICS, ADMISSIBILITY, PROOF, VALIDITY OR OTHERWISE OF
CUSTOMARY LAW

Introduction
Custom means the established way of life of a particular people staturily, the Evidence Act defines custom
in section 2 as a “rule which in a particular district has from long usage, obtained the force of law”. The
court par Nwokedi JSC judiciary followed the above definition in Agbai v. Okagbue.
In the words of the Court of Appeal in Aku V. Aneku custom is:
The unrecorded tradition and history of the people, which has “grown” with the “growth of the people to

stability and eventually become an intrinsic part of their culture. It is a usage or practice of the people which

by common adoption and acquiescence and by long and unvarying habit has become compulsory and has

acquired the force of law with respect to the place or the subject matter to which it relates.

By this definition, the word “custom” and the phrase “customary law” are not only synonymous but also
coterminous. In the ordinary parlance, it is not so. The word “custom may simply refer to established usages
of a people, whether or not they have acquired the character of law. According to Niki Tobi JCA, there is
a clear difference between the two. In Ojisna V. Aiyebelehin, the court of Appeal held that.
The word “custom” may only reflect the common usage and practice of the people in a particular matter
without necessarily carrying with it the force of law. In other words a custom may exist without the element
of coercion of sanction. John Austin had this in mind when he defined “custom as positive morality, as long
as it does not receive judicial pronouncement. The element of law is important because it is that which in
reality carries sanction in the event of breach.
In other words, it is those customs that the people consider compulsory that constitute customary law. In
Oyawunmi V. Ogunesan Obaseki, JSC defined customary law as;
The organic or living law of the indigenous people of Nigeria regulating their lives and

transactions. It is regulatory in that it controls the lives and transactions of the community

subject to it.

The definition has been quoted with approval in many subsequent has been quoted with approval in many
subsequent cases. However, a more comprehensive definition of customary law is contained in section 2 of
the customary court Edict (1984) of the old Anambra State. The Edict defines customary law as “a body of
rules regulating rights and imposing correlative duties, being a rule or body of rules which obtains and is
fortified by established usages and which is appropriate and applicable to any particular matter, dispute,
issue or question”.

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Characteristics of Customary Law

In Ojisua V. Aiyebelehin Niki Tobi J.C.A. summarized the characteristics of customary law as follows:
 it must be in existence; it must be custom as well as law;
 it must be in existence; it must be acceptable;
 it is largely unwritten and related to its unwritten nature is its flexibility;
 and it should be universally applicable within the area of acceptability.
In Kindey and Ors. V. military Governor of Plateau State, Karibi- Whyte, J.S.C (as he then was) said:
“it is one of the characteristics of customary law that it to be in existence at the material time.
Hence, at the time a particular rule of custom is sought to be relied upon, it must be shown that the people
of the particular area accept it as their custom and acknowledge its existence or continued existence.
Bairamian F.J. (as he then was) underscored the significance of the fact of acceptance in Owoniyi v
Omotosho when he said that customary law is, “a mirror of accepted usage”. Because of the flexibility of
customary law, it is not sufficient to show that it was once in existence. Its continued existence at the
material time it is sought to be relied upon must be proved.
Speed Ag. C.J in acknowledging of this fact in Lewis v Bankole said: it must be “existing native law and
custom and not that of by gone days”. This position was reinforced splendidly by Lord Alkin in Eshugbayi
Eleko v Government of Nigeria thus:
Their lordships entertain no doubt that the more barbarous customs of earlier days may under the

influence of civilization become milder without losing their essential character as custom. It would

however, appear to be necessary to show that in their milder form they are still recognized in the

native community as custom, so as in that form to regulate the relations of the native community inter

se…… it is the assent of the native community that gives a custom its validity and therefore,

barbarous or mild, it must be shown to be recognized by the native community whose conduct it is

supposed to regulate.

Customary law, therefore, derives its strength and vitality from its acceptance by members of the
community as obligatory on them. Hence, it would not be enough if a custom is merely shown to be in
existence. In the words of Niki Jobi J.C.A, it must be custom as well as law. It is the element of law that
gives the custom a binding character. Park seems to agree with the above view when he said:
The practice in question should not only be “customary” it must also “be law”
.It is clear without authority the habitual observance of the practice by the community is not alone sufficient.
The observance must be a matter of obligation, which will if necessary, be enforced.

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Customary law is not rigid. It is flexible in response to be dynamic character of society and culture. This
dynamic character of customary law is encapsulated in the judgment of Osborne. C.J., Lewis v
Bankole when he said that:
One of the most striking features of West African native custom…. Is its flexibility; it

appears to have been always subject to motives of expediency, and it shows unquestionable

adaptability to altered circumstance without entirely losing its character.

An example of the flexible nature of customary law is important here. Initially, customary law did not know
total or complete alienation of land except to members of the family. This rule of customary law
subsequently gave way and land became freely alienable Obaseki JSC underscored the dynamic or organic
character of customary law in Ogenwumi v Oguneson when he said that:
Customary law is the organic or living law of the indigenous people of Nigeria, regulating

their lives and transactions. It is organic in that it is not static; it is regulatory in that it

controls the lives and transactions of the community subject to it.

Another feature of customary law is that it is largely unwritten. In terms of origin, customary law is
evolutionary rather than a product of conscious human effort. Its source is essentially the recollection of
elders and others whose traditional roles enables, to have special knowledge of the customs and traditions
of their people.
There are provisions in our law according to which definitive statements of the customary law rules could
be reduced into a written form. The Ministry of Justice of the old Anambra State published a customary
law manual, which it described as an authentic statement of the customary laws of communities in both
Anambra and Imo States and is expected to guide the courts in their judicial functions. However, the manual
was never infused with the force of law through legislation or otherwise. It therefore has no binding effect.
The unwritten character of customary law initially gave rise to the idea that any transaction evidenced in
writing was beyond the jurisdiction of customary law. The view was however, clarified in Rotibi v
Savage by Waddington, J. who said that the existence of written documents does not necessarily preclude
the operation of customary law, especially where the document merely serves to evidence a money
transaction. There is no uniformity in customary law among Nigerian communities. This is caused by the
diversity of the people of Nigeria. Hence, diversity in people implies diversity of customs.
Customary law varies from place to place and there may be as many customary laws as there are
independent communities in the country. This diversity of customary law system is a major obstacle to
uniformity of customary laws systems in each state.

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It should, however, be noted that to many respects, the ethnic customary law of an area is similar to that of
another area where the indigenous people in both areas belong to the same tribe.
Lastly, a rule of custom that has the force of law must be universally applicable within the area of
acceptability. It should not be rule applicable to one section of the people within the area.
Is Muslim or Islamic Law Customary Law?
An important question to ask here is whether Muslim or Islamic law customary law? This question is patient
in the light of the fact that some legal text writers use to categorize customary law and Islamic law as a
source of Nigerian law. The answer to the above question can be obtained from our foregoing discussion
on the meaning, and characteristics of customary law. It is clear from the foregoing that Islamic law is not
customary law. In the first place, Islamic Law is not indigenous to Nigeria, its history in Nigeria can be
traced to the advent of Islamic religion in the country.
Another distinguishing factor is that Islamic law unlike customary law is largely written. Again, Islamic
law, being a law based on religion, is rigid or dogmatic in nature. This is unlike customary law which is
unwritten and flexible.
Thought the Islamic legal system has many schools, the school or branch which is practiced in Nigeria, the
Maliki school, is almost uniformly applied in the areas governed by Islamic law, though, with some local
variations. The difference between Islamic law and customary law was judiciary acknowledged by the
Supreme Court in Usam v Umaru . There justice Bello said:
Definition of ‘Customary law’ in section 2 of the customary court of Appeal law which means the rules of
conduct…. As established by custom and usage is incapable of including ‘Moslem law’. Since the decision
in Lewis v Bankole … ‘customary law has been stated to be unwritten customary law, recognized as law
by the members of an ethnic group and it is a mirror of accepted usage’ … on the other hand, it is a notorious
fact that Moslem law is written in the Holy Koran, in the numerous books of the Hadith … the explanation
contradicts the contention of park and others. According to park, tribal laws are not the only systems
covered by the term customary law’ for throughout federation it includes Islamic law also… thus for
practical purposes Islamic and the various tribal laws are treated alike, though there are many theoretical
distinctions between them.
Another adherent of the above view is Obilade who maintained that customary law in Nigeria may be
divided in terms of nature, into two classes, namely, ethnic or non-Moslem customary law and Moslem
law.
The contention of park and Obilade seems to have a statutory approval in section 2 of the native courts law
of the former Northern Nigeria, which provides that “native law and custom includes Moslem law”.

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Generally, going by the nature and characteristics of customary law, Islamic law is not customary law. The
fact however, remains that in several parts of Northern Nigeria the Islamic way of life has supplanted their
local customs. In these areas, Islamic law should be seen not as the customary law of the area, but as the
equivalent of customary law, which has been suppressed by it.
Ascertainment of Customary Law; as earlier observed customary law is unwritten, flexible and differs
from culture to culture. Furthermore, a rule of custom may not necessarily have the force of law. It is only
those usages, usages, which people consider as obligatory that have the force of law. The above noted
characteristics of customary law make it difficult to establish.
To solve the problem associated with ascertainment or establishment of customary two broad methods of
establishment of customary law, i.e, by proof or by judicial notice have been suggested.
Proof of Customary Law; In considering the question of proof of customary law, it should be pointed out
that ascertainment of customary law before British-type courts and ascertainment of customary law before
customary courts present different kettles of fish. Hence, they will be considered under different headings.
Proof of customary law before customary courts; Section 14(1) of the Evidence Act provides that a
custom may be adopted as part of the law governing particular set of circumstances if it can be noticed
judicially or can be proved to exist by evidence. However, by section 1(4) (c) of the Act, the Evidence Act
does not apply to judicial proceedings in or before native court unless the Governor-in-council shall by
order confer upon any or all native courts”… jurisdiction to enforce any or all of the provisions of the Act”,
With regard to the above, there is no evidence that a state in the country has extended the application of the
Evidence Act to customary or area courts as provided by the above law. Consequently, the modes of
establishment of customary law prescribed by the evidence Act do not apply to customary or area courts
Evidence is a matter within the exclusive legislative list under the 1999 constitution of Nigeria.
Consequently, only the National Assembly can legislate on it. Therefore, it is safe to say that the purported
enactment of evidence law by Lagos State is clearly ultra vires and thus null and void, with no effect
whatsoever.
Judges of customary and area courts are assumed to know the custom of their people. Therefore, customary
law is not required to be proved before customary or area courts. In Nsemfo v Ababio the West African
court of Appeal held that it is not obligatory for a native court to require a custom to be proved through
witnesses if the members of such court are familiar with the custom. The customary court in question in
this cas was the Asantchene’s “A” court, the court of one of the paramount rulers of the then Gold coast
now Ghana. The relevant customary law was that of the area of jurisdiction of the court and the members
of the court were versed in the custom of the area.

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The high court of Western Region of Nigeria took a contrary position in Fijabi v Odumola when it set aside
the decision of a customary court on the ground that the customary court without proof applied a rule of
customary law. This decision was, however, over ruled by the Supreme Court on appeal to it. The Supreme
Court was of the view that if the defendant/respondent wishes to challenge the president’s ruling on specific
point of customary law, he ought to give notice that he would apply to call evidence on the point and it was
for the judge to decide whether or not to allow it.
The case of Ehigic v Ehigic took different course. In that case, the respondent was the eldest son and the
appellant the eldest daughter of one Ehigic Edise who died intestate. The question before the customary
court was which of the two children of the deceased-his eldest son or eldest daughter-was entitled to succeed
to his property according to Benin native law and custom. No evidence was led before the court by either
party to the dispute, as to what the Benin customary law of inhabitance was the president of the customary
court Grade A, entered judgment: in favour of the respondent. The court said that it was a fundamental
principle of Benin customary law of inheritance that the eldest surviving male child of the deceased who
performed all the custom and funeral ceremonies is the one entitled to inherit all of the deceased’s properties
except those property or properties which the deceased gave away before his death; and that no child other
than the eldest surviving male child of the deceased who had performed the funeral ceremonies had right
of inheritance.
On appeal to the High Court, Fatayi Williams J, (as he then was), held that the ends of justice will be better
served if a customary law which has not been “so frequently before the court as to be well established and
notorious” is proved by evidence in customary Courts. The learned judge distinguished the case of Ababio
v Nsemfoo from the one in hand. According to him the customary court which decided the former case was
Asantehene’s ‘A’ court, a court of one of the paramount chiefs of the Gold coast, the members of which
are familiar with their own native customary law. That being the case, it was not necessary to prove the
customary law of the community before the court. In Western Nigeria, on the other hand, the only statutory
qualification of a president of a Grade “A” customary court is that he must be a legal practitioner. He does
not need to come from the area of the Court and does not need to have any special knowledge of the
customary law of the area. Consequently the judge held that rules of customary law must be proved to the
court.
This decision must be criticized. In the first place, there was no evidence before the court that the President
of the customary court did not come from the area of jurisdiction of the court. Secondly, the decision would
seem to rest on the presumption that a legal practitioner as a president of a customary court does not need
to know the customary law of his jurisdiction except where the law prescribes that as a condition for his

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appointment. The presumption should rather be that where members of a customary court are from the area
of jurisdiction of the court, whether they are legal practitioners or not the members are presumed to know
the customary law. The presumption is rebutable by calling evidence to prove the contrary. Hon. Justice
Ojiako made a scathing criticism of the decision in Ehigie’s case when he said:
First and foremost, the court being a customary court, there was that presumption that the customary court
judge was versed in the Benin Customary law-the law was embedded in his breasts and he needed no
evidence to establish before him customary law which he is presumed to know.
In Usman Waziri v Musa Ugye and Ors, Belgore C.J. (as he then was), adopted a different interpretation
by saying.
The Area Court of the area of action is presumed to know the native law and custom of the area, it is a
rebuttable presumption and until it is rebutted, this statement of the law must not be interfered with.
A similar decision was reached in Edopkpolor v Idehen where the plaintiff brought an action for trespass
against the defendant before the Benin Grade A customary court, the president of the court prevented the
defendant from adducing evidence of custom which was different from the one pleaded by the plaintiff.
According to the president, as evidence of English is not required in English Courts, so also evidence of
customary law is not required in customary courts.
In the case of Usman v Kareem Onu, J.S (speaking for the Supreme Court said: the Area court Edict, 1967
of Kwara State empowers an Area Court in civil cases to administer the native law and custom prevailing
in the area of jurisdiction of the court or binding between the parties. Thus the Local Area Court is presumed
to know the local law and custom. Although the presumption is rebuttable until it is rebutted, the Area
court’s pronouncement is valid.
This opinion, however, is an obiter since the question of whether customary law should be proved before a
customary or area court was not in issue in that case.
In Odufuge v Faloke, the Supreme Court endorsed the procedure of the trial customary court which relied
on an earlier decision of a customary court which relied on an earlier decision of a customary law. The
court further held that customary courts have the duty to declare customary law and that, they are not
required to adopt any procedure in doing so.
The following propositions can be inferred from decided causes on the matter. Before customary courts,
customary law is a question of law need not be proved to the court. However, this is only a rebuttable
presumption. The presumption can be rebutted by showing: that the law of the court is not the law prevailing
in the area of jurisdiction of the court; that the members of the curt are from an area different from the area
of jurisdiction of the court: that the area of jurisdiction of the court is so wide that the members of the

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constituent areas; that the member of the customary curt are for other reasons not versed in the custom
sought to be relied upon.
In the old Bendel State, it has now been statutorily provided that a customary court is presumed to know
the appropriate customary court is presumed to know the appropriate customary law of the area within its
jurisdiction. In Ogiugo v Oguigo the issues were whether the court of Appeal was right in affirming the
judgment of the customary court of Appeal which reversed the findings and statement of what is the
appropriate customary law in relation to the instant case, having regard to the provision of section(6) of
the customary court Edict of 1984 as well as the provision of order x Rule 6(3),(5) and (6) of the Customary
Court rules, 1978: and whether the evidence given by the Oba settled the issues in dispute between the
parties, to wit: the customary procedures for the selection or appointment of the Enogie in the peculiar
circumstance of this case. While unanimously allowing the appeal, the Supreme Court held as follows.
According to the applicable law in Edo State, the Area Customary Court has the power to declare the
customary law of the area within its, jurisdiction in any particular case before it. If it did so, as in this case,
then the customary law so declared is presumed to be cored unless the contrary can be proved in either of
the following two cases:
 If the declared custom is shown to be in conflict with any previous subsisting judgment
of the High Court, Court of Appeal, or the Supreme Court: or
 If additional evidence is shown on appeal in the customary court of Appeal and the
evidence contradicts the custom so declared.
If neither (i) nor (ii) is available, the declaration by the Area Customary court of the appropriate custom of
the area concerned is presumed to be correct and final.

Proof of Customary Law in Non-Customary Court; Before English-type courts, customary law is a
question of fact to be proved by evidence. A party who alleges the existence of a particular custom must
adduce sufficient of the court. Section 14 of the evidence Act that governs the matter provides as follows:
14(1)-A custom may be adopted as part of the law governing a particular set of circumstances if it can be

noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall lie upon the

person alleging its existence.

(3) where a custom cannot he established as one judicially noticed, it may be established and adopted as part

of the law governing particular circumstance by calling evidence to show that persons or the class of persons

concerned in the particular area regard the alleged custom as binding upon them.

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The requirement of proof of customary law to non-customary courts is based on the assumption that the
judges of English-type courts are not versed in customary law. Ordinarily only facts and not law are required
to be proved before a court. A court is required under section 73 and 74 of the evidence Act to take judicial
notice of a law. However, these provisions do not extend to rules of customary law. The modes of proof of
customary law include testimonies of witnesses’ expert opinions, use of assessors, and use of text books or
manuscripts.
Testimonies of Witnesses/Expert Opinions: By section 76 of the Evidence Act, all facts except the
contents of documents may be proved by oral evidence. And in relation to proof of customary law, other
relevant provisions of the Evidence Act are as follows:
 57(1)- when the court has to form an opinion upon a point of …. Native law or custom …. The

opinions upon that point of persons specially skilled in such native law or custom …… are relevant

facts … (2) such persons are called experts.

 59-indeciding questions of native law and custom the opinions of native chiefs or other persons

having special knowledge of native law and custom and any book or manuscript recognized by native

as legal authority are relevant.

 62(1) when the court has to form an opinion as to the existence of any general customs or right, the

opinions as to the existence of such custom or right of persons who would likely know of its

existence, if it exists, are relevant.

By virtue of section 14(1) of the evidence Act, the burden of proof of custom is on the person alleging its
existence. In other words, the onus is on the person or party who claims a particular evidence to establish
the custom.
In Ibrahim v Barde, it was held that by virtue of section 59 of the evidence Act, the court in deciding
question of native law and custom, the opinions of native chiefs or other person having special knowledge
of native law and custom are relevant.
Evidence in proof of customary law need not necessarily be oral. In Oyefule v Durosinmi the Supreme
Court held that it is trite law that a registered chieftaincy declaration made pursuant to section 11 of the
Obas and chiefs law of Lagos state 1981 provides for proof of customary law in relation to the chieftaincy
for which the declaration is declaratory of the tradition, custom and usages relating to the selection and
appointment to a particular chieftaincy stool and obviate the necessity of proof of oral evidence of such
tradition, custom and usages on each occasion that the issue. Arises for determination by the courts.
Use of Books and Manuscripts: Generally, opinions in accepted authoritative books can be cited in
support of a submission in court. In relation to proof of customary law, section 59 of the evidence Act

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provides that in deciding questions of native law and custom, any book or manuscript recognized by the
natives as a legal authority is relevant.
In Ibrahim v Barde, the Supreme Court held admissible, a book called the Abuja Chronicle, which according
to some witnesses, is regarded in Suleja as authentic account of the history and culture of the people of the
area. For a book to satisfy the requirement or section 59 of the Evidence Act such book must have gained
sufficient eminence to warrant it citation to the court. Secondly, the parties should have introduced it into
evidence.
In Adedibu v Adewoyin, the plaintiff asked the court for a declaration that the defendant was not entitled
to be appointed the Mogaji of the house of which they were both members. The evidence adduced the trial
judge on this matter of custom was conflicting and were all rejected. The judge instead the book of ward
price entitled the Memorandum of land Tenur in Yoruba provinces. The book was never introduced in
evidence by either of the parties. On appeal, the West African of Appeal held that the book was not of
sufficient eminence to warrant its citation to the court as an authority. It was also held that section 59 of the
Evidence Act requires that a book, which could be relied on, should form part of evidence before the court,
or the court itself should call for it and admit it in evidence. There are however, other subsequent cases
where the courts considered book not previously introduced into evidence.
However, in Idundun and ors v Okumagba and ors, the Supreme Court held that no book shall be accepted
in aid to proof of traditional history of ownership of land except if such book is proved to be generally
acknowledging either in Nigeria or else were as a standard work or as appropriate authority on the relevant
traditional history.
Assessors: The use of assessors is common in Northern Nigeria, but not so in Southern Nigeria. Assessors
sit with the judges in order to assist the judges with their expert knowledge of the matter under
consideration. They can be considered as experts within the meaning of section 57(2) of the Evidence Act.
The law normally provides for the use of assessor. Assessors are neither part of the count nor witnesses.
They cannot testify before the court. They merely sit with judges and proffer opinion when the court seeks
their opinions. Such opinions are normally given in chambers, not in the open court
Judicial Notice of Customary Law; Laws are not required to be proved in English-type courts because
such court are required to take judicial notice of them. However, to English type courts, customary law. Is
initially a question of fact, which must be proved by evidence? Once proved and a judicial notice of it has
been taken, it may not be proved again. The position is governed by section 14(2) of the Evidence Act,
which provides that:

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A custom may be judicially notice by the court if it has been acted upon by a court of superior or co-ordinate
jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the
persons or the class of persons concerned in the area look upon the same as binding in relation to
circumstances similar to those under consideration.
This provision has many components. The custom must have be acted upon by a court of superior or co-
ordinate jurisdiction; the earlier court and the subsequent one must be in the same area the custom should
have been acted upon to such an extent as would justify the inference that the persons or class of persons
concerned in that area book upon under consideration.
A superior court, (in terms of hierarchy) is not under obligation to take judicial notice of a custom proved
before an inferior court. A court can only take judicial notice of a custom acted upon by a superior court or
a court of co-ordinate jurisdiction. However, as Prof. Obilade rightly observed, my humble view in addition
to his that since a court of Appeal is entitled to apply the land which the lower court is empowered to apply,
the court of appeal put itself in the position of the lower court in respect of establishing customary law by
judicial notice. Therefore, if the lower court is entitled under customary law to the judicial notice of a
custom, the court of appeal is also entitled to take judicial notice of the custom under consideration even
though, it has sat as a court of first instance.
A court can only take judicial notice of a rule of customary law where the custom had been previously acted
upon by a court in the same area. This provision underscores the absence of uniformity of customary law.
In Sontos v Okosi it was held that the mere fact that a custom was held proved before a Calabar court in
Henshaw v Henshaw does not necessarily make it applicable to the people of Epe in Lagos State, in a case
brought before the court in that area.
Professor Obilade is of the view that the words “the same area” in the context of section 14(2) of the
Evidence Act mean in the ethnic-group area or Moslem community area within which is contended that the
custom applies. The Supreme Court has in Taiwo v Dosum interpreted the phrase “the same area” in which
some grounds appear for supposing the customs to be uniforms.
As noted earlier, for a custom to be judicially noticed, it would have be acted upon to such an extent as
would justify the inference that the persons are class of persons concerned in that area regard it as binding
in relation to circumstance similar to those under consideration. The pertinent question is how of ten should
a particular custom be successfully invoked in court before it would be judicially noticed? Before the
Evidence Act was enacted in 1945, the pricey Council had in the gold const case of Asngu v Attch held that
the common law doctrine of judicial notice, in its application to customary law as a fact, requires frequent

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proof in the courts as a pre-requisite of judicial notice. This principle was followed in a number of
subsequent cases including those given after the introduction of the Evidence Act.
However, in Cole v Akinyele judicial notice was taken of a custom on the basis of a single decision. In that
case, the Bsuc was whether children born outside wedlock to the deceased who died intestate and who was
married under the ordinance could share the estate of the deceased with the children of the ordinance-
marriage. It was contended that they could because according to the native law and custom of the Yorubas,
legitimacy depends on acknowledgement of paternity by the father, and the deceased while alive
acknowledged the children as his. In support of the contention reliance was placed only upon the case of
Alake v Praff and no other evidence was sufficient evidence to prove it in Alake v Praff.
Of recent, the supreme court has been singing discordant tunes in their pronouncements on the matter. In a
number of cases the supreme court held that a singled decision is sufficient for a custom to be judicially
noticed. In Nzekwll and Ors v Nzekwu and Ors Nnamdni JSC who read the leading judgment said:
A custom, if it has been well established in a decision of the superior courts need not be pleaded and

proved, but it would be necessary, however, to plead facts and lead evidence to bring the suit in

question within the ambit of the judicially noticed custom.

Here, his lordship was specific about establishment of the custom in a previous decision of a superior court.
On the other hand, the Supreme Court has held in a number of cases that a solitary instance of the application
of a rule of custom to the facts of a particular case is not sufficient to confer the requisite notoriety on such
a case. Unfortunately, no counsel has in any of the cases drawn the attention of the Supreme Court to the
conflicting decisions. It is hoped that the Supreme Court will at the earliest opportunity reconcile the
conflicting authorities. It is hereby, suggested that a single decision of a court on a point of customary law
which is sufficiently cogent and authoritative, should be enough to enable a court take judicial notice of its
existence without further proof.
Since customary law is dynamic, the question is whether evidence can be led to show that a rule of
customary law already judicially noticed is no longer accepted by the people of the area as their custom or
has been modified. The answer seems to be in the affirmative. In the old case of Danmole v Dawodu the
Federal Supreme court admitted evidence for the purpose of showing that in Lagos the judicially-noticed
custom on succession, idi-igi (distribution of estate per stipes) had ceased to be the prevailing custom and
had been replaced by ari-ojori (distribution of estate per capita). The court held that idi-igi was still the
applicable custom. Consequently in Adeniji v Adeniji it was held that ori-ojori is an alternative applicable
custom on the matter.

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Validity of Customary Law
Ascertainment of customary law is not conclusive of its validity. The various statutes empowering the
courts to apply customary law prescribe some criteria for determining the validity of any particular rule of
customary law sought to be applied and enforced. The high courts laws of the various States direct the
courts to observe and enforce the observance of native law and custom, but only if the particular rule is not
repugnant to natural justice, equity and good conscience or incompatible either directly or indirectly with
any law for the time being in forced, or incompatible with public policy. For example, the provision to
section 14(3) of the Evidence Act provides that “in case of any custom relied upon in any judicial
proceeding, it shall not be enforced as law if it is contrary to public policy and is not in accordance with
natural justice, equity and good conscience”. The combined effect of these two provisions is that the courts
cannot enforce a rule of customary law unless the following three criteria are met.
In the first place, the custom should not be repugnant to natural justice, equity and good conscience; it
should not be incompatible either directly by implication with any law for the time being in force; and the
custom should not be contrary to public policy. The customary rule may be offensive in three possible areas:
in the field of substantive law, in the field of procedure, and in the degree of punishment. We shall now
examine how the courts have interpreted the validating criteria.

The Repugnancy Test:

A rule of customary law, which is repugnant to natural justice, equity and good conscience, cannot be
forced and applied by the courts. But the question is what do we mean by the phrase “Natural justice, equity
and good conscience”? In Lewis v Bankole, speed J attempted to interpret the phrase disjunctively and give
separate meanings to “natural justice”, “equity”, and “good conscience” but the interpretation was rejected
on appeal. Niki Jobi J.C.A also examined the phrase, in the case of Mojekwu v Ejikeme. According to his
lordship, “the word ‘repugnant’ ordinarily means offensive, distasteful, inconsistent or contrary to: the
expression ‘natural justice’ generally means justice according to or pertaining to nature and therefore
inborn. Ink Okonkwo v Okagbue the Supreme Court maintained that the courts have not interpreted the
phrase “repugnant to natural justice, equity and good conscience” disjunctively. Equity according to the
court, in its broad sense, as used in the repugnance doctrine is equivalent to the meaning of “natural
justice” justice” and embraces, almost all, if not all, the concepts of “good conscience’. Equity is not used
here in its technical sense but in its broad sense. Also natural justice is not used in its modern technical
sense, but synonymously with natural law. According to Ezejiofor, “the cases show that the phrase is

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interpreted to mean fair and just or conscionable”. In other words, a rule of customary law that is unjust,
unfair or unconscionable is repugnant to natural justice, equity, and good conscience.
It must be noted that conformity to the standard of behavior acceptable in advanced communities e.g. the
English community does not appear to be the test of repugnancy. Nor will a rule be declared void merely
because it is inconsistent with the principles of English law
Niki Jobi, J.C.A., made the point more forcefully in Mojekwu v Ejikeme when he said:
The point should however be made that in the determination of whether a customary law is

repugnant to natural justice… the standard is not the principle of English law or English statute.
On the contrary, the courts must have an inward look, inward in the sense of Nigeria jurisprudence. Such
an indigenous approach, if may use that expression vaguely, will certainly reduce the usual pet expression
of the English Judge, “Barbaric” in the description of our traditional jurisprudence, an expression, speed,
Ag. C.J freely used in Bankole v Lewis.
Similarly, the Supreme Court in Okonkwo v Okagbue held that the fact that a rule of customary law denies
a person a right to which he would be entitled under English law is not in itself sufficient to invalidate that
rule.
Prior to Nigerian independence, most judges in Nigeria were foreigners imbued with self-righteous
indignation towards a strange culture that they considered not only inferior but also generally barbarous as
evident in the following pronouncement of English Judges: in Laoye v Oyetunde, lord wright expressed the
view that the repugnancy test was intended to invalidate “barbarous” customs? Lord Atkin in Eshugbayi
Eleko v government of Southern Nigeria said that a barbarous custom must be rejected on the ground of
repugnancy to natural justice, equity, and good conscience.
The above notwithstanding, there is no doubt that some of our customs are obnoxious and inhuman, and
cannot be sustained in modern civilized societies. One cannot therefore accept the views of Professor Abiola
Ojo on the matter, which appears to go the extreme when he said:
If it admitted that rules of custom are a reflection of the behavourism of a people a particular area,

and I see no escape from admitting this, would it not then be fairer to judge its validity by the local

sentiments of right and wrong from any individual legal or social system, but rather from general

notions.

The court have not formulated any general theory on which rules of customary law should be based rather,
the approach by courts is to adopt a flexible approach and on an old-hoe manner, invalidate or sanction a
rate sought to be applied on the basis of their notion what is fair and just.

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In Guri v Hadejia Native Authority the Federal supreme court declared invalid a rule of Maliki law, which
forbids a person, accused of highway robbery from testifying in his own defence.
Based on the repugnacy principle, the courts have consistently found for the biological father as opposed
to the sociological father in contest for issues of a union or their custody. In Edet v Essien the plaintiff had
paid dowry for a union with another man, by who she had two children. The plaintiff at the court alleged
that under a rule of customary law, he was entitled to the custody of the children until his dory is repaid. It
was held that such a rule of customary law is repugnant to natural justice, equity and good conscience.
In Okonkwo v Okagbue”, the appellant, as plaintiff, brought a representative action on behalf of himself
and his four brothers against the respondents, as defendants, in the High court of Onitsha, the appellant
together with four others on behalf of whom he instituted the action namely;
 Nebolisa Okookwo
 Obiese Okonkue
 John Okonkwo and
 Chinyelugo Ikechukwu Okonkwo were the surviving sons of late Nnonyelugo Nnebuchi Okonkwo
of Ogboetu village, Onitsha, who died in 1931.
The deceased had two sisters, the 1st and 2nd respondents who survived him but neither of them had any
child by their husbands or anyone else.
On or about 1968, the 1st and 2nd respondents purportedly married the 3rd respondent for and on behalf of
their late brother, without the knowledge and consent of the appellant and his four brothers. As a result of
this marriage, the 3rd respondent gave birth to six children who all bore the surname of the late Nnanyelugo
Nnebuchi Okonkwo and pended themselves as his children. The 1st and 2nd respondents also held them out
as the children of their late brother. The appellant had repeatedly made demands and representation to the
1st and 2nd respondents to return the children of the 3rd respondent to the people of late Okagbue and late
Obiozo who by the native law and custom of Onitsha should be the fathers of the children, to no avait: the
appellant claimed as follows:
1) Which are;
i) A declaration that under Onitsha native law and customs, the 1st and 2nd defendants by
themselves cannot marry the 3rd defendant for their late brother, Nnanyelugo Okonkwo and
that the alleged marred is null and void;
ii) That the 3rd defendant is not the wife of late Nnanyelugo Okonkwo.
2) An order of court that all the children of the defendants namely; Ikechukwu, Okwudi, Ujil Victor,
Okechukwu, and Obiageli are not the issues of late Nnanyelugo Okonkwo.

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3) A declaration that the children (aforesaid) cannot inhent either the real or personal property of the late
Okonwo lineage, and or in the alternative, that the children of Okagbue and Obiozo and belong to
Ogbeodogwu and Ogboli families according to Onitsha native law and custom.

At the conduction of the hearing, the learned trial judge dismissed the appellants (plaintiffs) claim. The
appellant was dissatisfied with the judgment and appealed to the court of Appeal which affirmed the
decision of the trial court. The appellant (plaintiff) further appealed to the Supreme Court. The Supreme
Court unanimously allowed the appeal and held that marriage, as it is commonly known, is a union of man
and a woman or women. That is to say, between, to physically exist so that the marriage can be
consummated. According to the apex court, a custom that allows a woman to be married to a decease man
as in the instant case cannot be said to be in good conscience or in accordance with public policy.
In the words of Ogurdare J.S.C.
To claim further that the children of the 3rd defendant had by other man or men are children of Okonkwo
(deceased) is nothing but an encouragement of promiscuity. It cannot be contested that Okonkwo (deceased)
could not be the natural father of those children. Yet the 1st and 2nd defendants would want to integrate them
into his family a custom that permits of such a situation gives license to immorality and cannot be said to
be in consonance with public policy and good conscience … it is in the in test of the 3rd defendant’s children
to let them know who their true father are (were) and not to allow them to live for the rest of their lives
under the myth that they are children of a who had died many decades before they were born.
In Muojekwu v Ejikeme, the issue was whether the Nnewi custom or ceremony of Nrachi where by a father
“plants” his unmarried daughter in his house for the purpose of raising issues for him and which further
forbids a widow from inheriting or succeeding to the husband’s estate, is repugnant to natural justice, equity
and good conscience. The court of Appeal held that a custom that denies the natural or biological father of
his child is certainly repugnant to natural justice, equity and good conscience.
Fabiyi J.C.A who read the leading judgment, in a very forceful and illuminating language said: I must
express the point here by which I will continue to stand that human nature, in its most ‘exuberant prime and
infinite, telepathy’ cannot support the idea that woman can take the place of a man and be procreating for
her father via a mundane custom. She stays in the father’s house and cannot marry for the rest of her life
even if she sees on honest man who loves her. I cannot, and do not believe that the society as it is presently
constituted, will for long acquiesce in a conclusion so indicrous, ridiculous, unrealistic and merciless, more
especially as we march on into the next millennium. The polity, as presently constituted, cannot, in my
view, contain what Nrachi custom stands for. It is not neat. It is not neat. It is an antithesis to that which is

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wholesome and forward- looking … the custom is perfidious and the petrifying odour smells to high
heavens … I have no hesitation in declaring that custom is against the dictates of equity. It is no doubt
repugnant and contrary to natural justice, equity and good conscience.
The facts of Yusuf v Okhia present a different picture in the case, the relations of the deceased wanted to
inherit” the widow, but she refused. The widow moved out of matrimonial home and had a relationship
with the appellant without having first performed the necessary funeral rites for her deceased husband. The
respondent, a brother of the deceased obtained judgment in the lower court against the appellant for
adultery. He alleged that the marriage between the deceased and the widow was assisting until the wife
performs the funeral rites for her (late) husband. The learned judge on appeal held that a rule of customary
law which permits action for adultery after the death of the husband, was repugnant to natural justice.
As rightly by Dinakin. The decision in this case seems to have ignored the cultural values and the essential
nature of customary law. While it is conceded that it will not be proper to force a woman to be “inherited”
by her deceased husband’s relations, the same thing cannot be said of requiring her to perform her
obligations to her deceased husband except where the obligations are onerous or her refusal to do so is on
religions or other justifiable grounds.
In Eugene Meribe v Joshva Egwu the Supreme Court held where there is proof that a custom permits
marriage of a woman to another woman, such custom would be regarded as repugnant. The apex court, in
that case, however sanctioned the customary practice where by barren woman procured another woman for
her husband.
Nigerian courts have in recent times condemned strongly customs that discriminate against women. In
Mojekwu v Mojekwu, one of the issues that came before the Enugu Division of the court of Apeal was the
incidence of “Ali-Ekpe” custom of Nnewi by which a surviving brother of a deceased is by custom allowed
to inherit the property of his late brother if the surviving wife has no male issue. According to Niki Jobi,
J.C.A,
We need not to travel all the way to Beijing to know that some of our customs including the Nnewi “Oli
Ekpe” custom relied upon by the appellant are not consistent with our civilized world in which we all live
today, including the appellant. In my humble view, it is the monopoly of God to determine the sex of a baby
and not the parents. Although the scientific world disagrees with this divine truth, I believe that God, the
creator of human beings, is also the final authority on who should be male and female. Accordingly, for a
custom or customary law to discriminate against a particular sex is to say the least such a thing. On my part,
I have no difficulty in holding that the “Olit Ekpe” custom of Nnewi, is repugnant to natural justice, equity
and good conscience.

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In Nzekwu & 2 ors v Nzekwu and 2 ors the Supreme Court held that the Onitsha person in the life time of
his widow is a barbarous and uncivilized custom which should be regarded as repugnant to equity and good
conscience and therefore unacceptable. In the recent case of Alajemba Uke and Anor v Albert Iro, the
appellant at the court of Appeal sought to rely on a purported custom of Nneato Nnewi under which a
woman could not give evidence in land matters. The court of Appeal held that a custom that strives to
deprive a woman of constitutionally guaranteed right is Otise. It offends all decent norms as applicable in
a civilized society. Pats Acholonu, J.C.A, pungently and poignantly, remarked:
Any customary law which flies against decency and is not consonant with notions, beliefs or practices of
what is acceptable in court where the rule of law is the order of the day shall not find its way in our
jurisdiction and should be disregarded, discarded and dismissed as amounting to nothing.
It would appear that the court of Appeal in the above case struck out the custom on the ground of repugnancy
without saying so expressly the court quoted with approval the decision of the court of Appeal in Mojekwu
v Mojekwu to the effect that a rule of customary law, which discriminates against a particular sex, is
repugnant to natural justice, equity and good conscience. In Solomon v Ogbodo it was held that a custom
whereby the husband could divorce his wife at will but the wife could not obtain a divorce unless the
husband consented was contrary to natural justice.
From the foregoing, it is evident that the courts have not adopted a general theory of repugnancy. The courts
adopted a flexible and case-by case approach to achieve fairness and justice as dictated by time and
circumstances.
It ought to be noted that the question whether a particular custom is repugnant is a matter of law and not
fact. It is therefore not necessary to plead that a custom is repugnant. In Okonkwo v Okagbue, the Supreme
Court held, inter-alia, that counsel in his address to court of the court itself can raise the issue of repugnancy,
may raise the point suo motu since it is enjoined to take the law into consideration and apply it in
determining whether a particular custom is applicable.

The Incompatibility Test

As mentioned earlier, various high courts laws enabling the application of customary law, state that a rule
of customary law, which is incompatible, either directly, or by necessary implication, with any law for the
time being in force cannot be observed or enforced by the courts. The word “incompatible” was judicially
interpreted by Niki Jobi J.C.A, in Mojekwu v Ejikeme. According to his lordship, “incompatible is a word
which means not compatible, not consistent and contradictory”. His lordship further said that the courts are

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compelled not to observe or enforce any customary law, which is not consistent with any written law in
force.
While it is easy to determine when customary law is incompatible directly with any written law in force, it
is not that easy to determine when a customary law is by implication incompatible with a written law. It is
however, a matter of hard of hard law based on the construction of the provision of the enabling laws.
Written law this context necessarily includes local laws, a fortiori, the provision of the constitution, which
is the fundamental law of the land.
In Agbai v Okogbue, the plaintiff/ respondent was a tailor by profession and carried on business at Aba.
The defendants were members of Abo branch of Umunkalu. Age group of Alayi on 22nd April 1978, the
defendants/appellants broke and entered the plaintiff’s shop and seized and carried away his butterfly
sewing machine. It was the contention of the defendants that the plaintiff, being a native of Umukala Alayi,
was by custom, obliged to join an age group and that he could not opt out. He was also by that custom
obliged to pay all development levies imposed on members by the age group. The defendants/appellants
allegedly seized the plaintiff’s sewing machine because he failed to pay the development levy for the
purpose of building a health center in their village.
The plaintiff contended that he was not a member of the age grade association because his religion for bids
him to join. The Supreme Court held that any customary law that is contrary to any statute or the constitution
of the Federation or incompatible with an existing law in force cannot be enforced by the courts. Hence,
the court held that the plaintiff/respondent is entitled to hold to the tenet of his religion, thought and
conscience, which prohibit him from joining the age grade. The court further held that any custom that
holds otherwise is contrary to the constitution and therefore null and void to that extent.
It has also been held that an existing native law, and custom may be altered or entirely abrogated by a valid
legislation, which is in conflict with it. In Mojekwu v Ejikane Supre, the court of Appeal held that a rule of
customary law, which denies women the right of inheritance of the estates of the deceased, is a violation of
section 39(2) of the 1979 constitution, which prohibits discrimination on the ground of sex. Such a custom
is therefore void. Similarly, in Alajemba Uke and Ahor v Albert Iro Supre, the court held that a custom
under which a woman could not give evidence in land matters was incompatible with a written law. This is
because, such as custom strives to deprive a constitutionally guaranteed right and it.
However, the thorny issues with regard to the incompatibility test is whether the phrase “any law for the
time being in force” includes the received English law. In Re Adedevoh, the West African court of Appeal
expressed an Obita view to the effect that any law in force included “the rules of common law”. On the
contrary, in Rotibi v. Swage Waddington, J, Observed, obiter dictum that, if a rule of customary law would

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be declared inapplicable and void if it is found to be inconsistent with an English rule of common law, a
principle of equity or a provision of a statute of general application, then it means that there will hardly be
any valid rule of customary law left.
In the recent case of Mojekwu v. Ejikeme supra Niki Jobi, J.C.A expressed the opinion obiter that in the
determination whether a customary law is repugnant to natural justice or incompatible with any written law,
the standard is not the principles of English law. A similar opinion was expressed in Okonkwo v. Okagbue
supra where the Supreme Court, in an obiter, Maintained that by the provisions of section 14 of the Evidence
Act and section 20 of the Old Anambra State High Court Law as well as similar provisions in other
legislations, the courts have come to recognize the fact that a rule of customary law which denies a person
a right to which he would be entitled under English law is not in itself sufficient to invalidate that rule. This
accords with another obiter in cuegory Obi Ude v. Clement Nwara & Anor, where Nnemke-Agu JSC said
that the common law, doctrines of equity and statutes of general application in force in England on the
1st day of January 1900 ought to apply in the states carved out of the former Eastern Region of Nigeria save
in so far as they have been exclusively modified by local legislation, or local customary law. Some recent
statutes, have however, to some extent eliminate the doubt in this matter. The customary Court Edict of
Anambra State directs the courts it established to apply customary law so far as it is not incompatible with
any written law in force. Similar enactments in the former Western and Northern Nigeria and the West
Nigeria High Court Law also used the term “written law” in relation to the question of in compatibility.
Undoubtedly, where the principle of equity of common law have been codified as customary law, as is the
case in the old Anambra State, they will quality as written law. These legislations, in any case, have failed
to clarify the issue of whether “written law” in this content includes English Statutes. It is evident from the
foregoing judicial opinion that the phrase “any law for the time being in force” in the content of the
incompatibility test does not include the received English law except where such received English law has
been re-enacted as a local law or codified.

The Public Policy Test

The criterion of public policy was introduced in 1945 when the Evidence Act was first enacted. The
Evidence Act, however, failed to define the phrase” public policy”. In Okonkwo v. Okagbue Supra, the
Supreme Court maintained that the phrase “Public policy” means the ideas in vogue for the time being in
community as to the conditions necessary and ensure its welfare. Hence, a thing will be treated as against
public policy if it generally regard as injurious to the public interest.

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The Supreme Court also observed that public policy is not fixed and stable. It therefore, fluctuates with the
circumstances of the time. Thus, new heads of public policy come into being and old heads undergo
modification. In the instance case, the Supreme Court held that to claim that the children the 3rd Defendant
had by another man or other men are the children of Okonkwo (the deceased) in nothing but an
encouragement of promiscuity. A custom that permits of such a situation gives license to immorality and
cannot be said to in consonance with public policy.
In the old case of Re-Adedevoh Supra, Verity C.J. Stated that if a suggested rule of customary law was
found to encourage promiscuity intercourse it would be contrary to public policy, and therefore void, but
he did not refer to the Evidence Act.
In Cole v. Akinyele Brett F.J, delivering the judgment of the Federal Supreme Court, held invalid, on
ground of public policy (though without reference to the Evidence Act) a rule of customary law which
provides that if the paternity of a child born out of wedlock is accepted, he becomes legitimate and share
equally with children born of a marriage contracted Uncler the marriage Ordinance.
It may be pertinent to mention that the effect of this decision has been mollified by section 41 (3) of the
1999 constitution, which has the effect of assimilating fully into the family, children that might otherwise
been considered illegitimate.

A Human Right Test

A learned commentator has suggested a new criterion for evaluating customary law, which according to
him is more encompassing and premised on universal legal and moral axioms. The suggested criterion is
the human rights and fundamental freedoms paradigm as a criterion for the determination of the validity of
customary law.
According to him, modern human right encompass virtually all fields of human Endeavour, and has
extended from the traditional civil and political liberties to economic, social and cultural rights, the third
and fourth generation rights relating to peace, the environment, and rights of the vulnerable stature of
society etc. he maintains that the human rights approach has the advantages of easy ascertain ability,
promotion of the general warfare and inherent dignity of man, and creation of awareness of human right
and fundamental freedoms.
The suggested human rights approach can only be an aspect of the incompatibility test because human right
are recognized and guaranteed by written law. Moreover, there may be issues which may be considered

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under the repugnancy and public policy test but which cannot be considered in relation to human rights.
Such issues include woman-to –woman marriage, or marriage to a deceased person.
The Effect of an Invalid Customary Law Rule
The pertinent question here is what law should apply where the customary law, which should otherwise
have applied, fails any of the evaluating criteria. Park has made some suggestions in this regard, which are
apt and apposite. According to the learned author, where a native law and custom is invalid because of
incompatibility with local enactment, then the rule in the latter will apply. If a native custom should apply
thus in Amgchree v. Kalio, the plaintiff’s community claimed under customary, law to be entitled to the
exclusive fishing rights in the Kalabari river, and that the defendant community could only fishing purposed
was a public or communal right was applied.

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HIERARCHY OF COURTS
The hierarchy of courts is the arrangement of courts in the method through which appeal flows. If
the judgement at the lower court is not satisfying, an appeal can be made to the higher court in order to
get redress and justice. I would highlight the courts starting from the lowest.
Magistrate or District Courts
This is just a single court, it transforms to a magistrate court in the hearing of a criminal case while in the
hearing of a civil case it becomes a district court. These are courts that are regarded as courts of inferior
jurisdiction. There are two adduced reasons for this. Firstly, it is not listed among the courts in S.6(5)(a) –
(i) of the 1999 Constitution. And section S.6 (3) provides that the courts that are mentioned in the
previous section are courts of superior record. By implication, courts that are not mentioned are courts of
inferior record. The second reason for this is that they cannot punish contempt ex facci curria.
The decisions of magistrate courts are bound by decisions of the higher courts but their own decisions do
not bind any court. Also, they are not bound any of their previous decisions.
The High Court/Sharia/Customary Court Of Appeal
Directly above the district/magistrate court, you would find the High Courts, Customary Court of Appeal
and Sharia Court of Appeal. Pursuant to S.6 (5) of the 1999 Constitution, we have federal high court, state
high court and the high court of the federal capital territory. Of these three, the state high court has the
widest jurisdiction. It should be noted that customary and sharia courts of appeal are not bound by
judicial precedent. This is because they are not of common law origin. Also, they hear appeals on cases
from the area courts. While the high court hears from the magistrate court.
These courts are referred to as courts of co-ordinate jurisdiction therefore, they are not bound by previous
decisions of another high court. At best, the decision of another high court is persuasive on another high
court. However, it is not expected for a high court to depart from another high court’s decision except in
good cause.
A state high court, unlike the federal high court, has wider jurisdiction. In the provision of S.251 of the
constitution, you would be able to see the limited jurisdiction placed on the Federal High Court. Thus, if a
state high court makes a decision on a matter of federal application, it binds all magistrate courts in the
country. If it makes a decision on matters of state application, it only binds courts of inferior jurisdiction
in the state.
COURT OF APPEAL
Directly above the high court is the court of appeal. There is only one court of appeal in Nigeria but it has
different divisions over the country. Thus, decisions by the court of appeal in Ilorin division is treated as
its own decision in the court of appeal Lagos state. The question then is how does the court of appeal deal
with judicial precedent?
It is trite that the court of appeal is bound by decisions of the Supreme Court. However, in dealing with
decisions of a court of appeal in another division, the court of appeal is bound to an extent. In civil cases,
it is bound by the decision of another court of appeal except in the situations provided for in the case
of Young vs Bristol Aeroplane Co:
• If the decision is given per incuriam
• If there are two or more conflicting decisions of different courts of appeals, it can follow either of them
or choose to follow none of them.

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• When a decision of a court of appeal is in contrast with a decision of the Supreme Court.
However, in criminal matters, a court of appeal is not bound to follow the decisions of other courts of
appeals. This is because of the very nature of criminal law in which each case should be treated on its
merit. Strictly following a previous decision could lead to irreparable damage. This may be due to the fact
that it is better for the court to set free 10 guilty persons than to convict a single innocent person.
THE SUPREME COURT
This is the highest court in the land and its decisions on any matter is final. Its decisions are binding on all
courts throughout the country.
The Supreme Court is not bound by any previous decision of any court anywhere. However, it follows its
previous decisions in order to maintain certainty and uniformity in the administration of justice. The
Supreme Court may, however, choose to depart from its previous decisions in the following situation:
• If the previous decision is given per incuriam
• If following the previous decision would lead to substantial injustice.
• When a legislation nullifies the decision made in the previous judgement. see Bucknor Maclean vs
Inlaks Nig Ltd [1980] where the court departed from its decision in two previous cases: Shell BP vs
Jammal Engineering Ltd and Owumi vs Paterson Zochonis and co Ltd due to the fact that adherence to
these precedents could lead to substantial injustice.
• If it is faced with two previous conflicting decisions of its own, it can choose to follow anyone.
In the case of Odi vs Osafile the court reasoned that the law was made for man and not man for the law.
Also, man isn’t infallible and so are his thoughts. Therefore if it is pointed out that there has been a
substantial error in a previous decision, the court should have the jurisdiction to correct that decision.

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WHAT IS LEGAL REASONING
The main purpose of studying legal method is to equip the law student with the right tools to enable him
to think like a lawyer. This is what would be addressed by discussing legal reasoning. To understand it
better, it would be best if the meaning of legal reasoning is expatiated upon.
The word “reasoning” has been defined by The Concise Oxford English Dictionary, 5 th edition as:
“Thinking persuasively in a coordinated, orderly, sensible and logical manner”.
The Black’s Law Dictionary 9 th edition further defines “legal” as:
“Of or relating to law; falling within the province of law”.

From the above definitions, one can deduce a definition of legal reasoning as the art of thinking
persuasively in a coordinated, orderly, sensible and logical manner in relation to law. Legal reasoning
simply concerns itself with learning how to think like a lawyer.

In order to fully understand legal reasoning, the language of the law would first be highlighted, there
would be definition of some key terms and finally, the different methods of legal reasoning would be
discussed.
THE LANGUAGE OF THE LAW
“Language” in this context doesn’t mean a whole new lingua franca. Rather, in considering the language
of the law, I would be highlighting of some of the general characteristics of legal language. The following
are the general features of legal language:

1. Law is Expressed in General Terms: What this means is that when laws or legal provisions are
worded, they are done in a way that would ensure that so much is covered by saying so little.
Because the law deals with all aspects of life, it cannot afford to provide for only specific
situations. Thus, it makes general provisions in most instances.
For example, the Criminal Code provides in S.317:

“A person who unlawfully kills another in such circumstances as not to constitute murder is guilty
of manslaughter”

This provision is general in the sense that if a person kills another unlawfully, and it is not murder, it
would be regarded as manslaughter. It would be more awkward and time consuming if the statute had
provided for the individual scenarios that would constitute manslaughter.

It should however be noted that the law could be specific in some instances. For example,
the Constitution establishes in S.6 (1) that the judicial powers of the federation are vested in courts
established by the constitution. The Constitution then further provides in S.6 (5):
This section relates to:-
(a) the Supreme Court of Nigeria;
(b) the Court of Appeal;
(c) the Federal High Court;

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(d) the High Court of the Federal Capital Territory, Abuja;
(e) a High Court of a State
(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) a Sharia Court of Appeal of a State;
(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;
(i) a Customary Court of Appeal of a State;

(j) such other courts as may be authorised by law to exercise jurisdiction on

matters with respect to which the National Assembly may make laws; and

(k) such other court as may be authorised by law to exercise jurisdiction at first
instance or on appeal on matters with respect to which a House of Assembly may
make laws.
The above provision specifically lists the various courts which the constitution was earlier referring to.

2. The Use of Abstract Concepts: Lawyers are not allowed to use words anyhow. Unlike scientists
who can give name to a new thing discovered, a lawyer is not allowed to formulate words that are
not already in use. Thus, when a lawyer wishes to express himself accurately, he formulates legal
concepts. An example of a legal concept is “rule of law”. These concepts usually contain deeper
meanings than their literal interpretations. For example, the rule of law has three main
components:
1. Supremacy of the Law
2. Equality before the Law
3. Fundamental human rights.

3. Other Remarkable Features of legal language: Legal language in addition to the above, has
some other specific features. They are:

 The use of common words with uncommon meanings. For example, instead of a
lawyer to say “the court should hold that” he says “it is submitted”.

 Legal language frequently uses Latin and French words like ultra vires, consensus
ad idem, nemo dat quod non habet
 Frequent use of archaic words like: hereinbefore, hereinafter, aforementioned etc.

 The use of special vocabulary that is only understood by those in the profession. For
example, a lawyer would say “my brief has not been perfected”, when he intends to
say that he has not been paid.
 Repetition of formal words like “the truth, the whole truth and nothing but the truth”.
The reason for this special language can be said to be a bid to mystify the profession in order for it not to
be easily understood by the “layman”.

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SOME KEY TERMS TO BE UNDERSTOOD
In order to better understand legal reasoning, there are some key terms that are to be understood. They
are:
1. Principles
2. Rules
3. Legal Rhetoric
They shall be subsequently explained below:
1. Principles: A legal principle has been defined by Farrar and Dugdale as:

“An established legal truth or proposition that is so clear that it cannot be reproved or
contradicted except by a proposition which is clearer”.

Thus, legal principles act as the standard by which actions are to be judged in order to determine
their legality and relevance. Any act or proposition that goes against a legal principle would be
open to criticism and rejection by lawyers. An example of a legal principle is the principle of
natural justice. If a lower court’s decision is made in violation of this principle, it is likely to be
struck out on appeal.

2. Rules: legal rules are the specific instances in which the legal principles would be applied. For
instance, the principle of natural justice has the following rules:
1. Audi alterem patem (hear the other side)
2. Nemo judex in causa sua (You can’t be a judge in your own cause).

3. Legal Rhetoric: Rhetoric is the act of seeking to persuade someone to accept your own opinion
either through speech or writing. Rhetoric is very important for lawyers as their main business is
usually to convince the judge that their cause should be favoured instead of the other party’s.
Legal rhetoric is achieved by appealing to authority. Authorities are the sources of law that lawyers
appeal to. They can either be primary or secondary. Primary authority include case laws and statutes
while secondary authority include opinions, writings, legal commentaries etc. Primary authorities when
quoted, are weightier than secondary ones. Thus, if the plaintiff backs up his arguments with primary
authorities and the defendant back up his own with secondary authorities, judgement would be entered for
the plaintiff.

METHODS OF LEGAL REASONING/LOGIC

The methods of legal reasoning are the rules of logic normally applied by lawyers in order to substantiate
their arguments. Three methods of legal reasoning/logic are:
1. Inductive reasoning
2. Syllogism/ deductive reasoning
3. Analogical reasoning
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The above shall be expatiated below:

1. Inductive Reasoning/Logic: Inductive reasoning is the one used by a lawyer if he supports his
claim with judicial provisions. In this instance, the lawyer first states the court holdings in
different cases, he then applies it to the case at hand. It is a form of moving from the specific to
the general.

2. Syllogism/Deductive Reasoning: This form of reasoning is used by a lawyer in most cases in

which he uses statutes as authority. It is a form of logic in which the lawyer starts from a major
premise, advances to a minor premise and then draws a conclusion. It is a form of reasoning from
the general to the specific.

For example, in a situation in which a prosecutor want to secure a conviction for

rape, he states:

 It is provided in 357 of the Criminal Code that whoever has unlawful carnal
knowledge of a woman without her consent is guilty of rape. (MAJOR
PREMISE)
 The accused had unlawful carnal knowledge of the complainant. (MINOR
PREMISE)
 The accused is thus liable for the offence of rape.(CONCLUSION)
3. Analogical Reasoning: This occurs in a situation in which when using inductive reasoning, the
points of similarity and differences between the different cases are pointed out. It is used by
judges in order to determine if an authority cited is appropriate.

For example, the case of Carlill vs Carbolic Smokeball Co cannot be used in a case relating to illegality
of a contract. This is due to the fact that by analysis, it can be deduced that Carlill vs Carbolic Smokeball
Co doesn’t have facts that concern the illegality of contracts.

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LEGAL REASONING IN JUDICIAL PROCESS
As man carries out his day to day interactions with his fellow man, there is likely to be strife and
disagreement amongst them. This necessitates the need for a process of resolving these disputes. This is
where the judiciary comes into play. The judiciary is the body of judges in a jurisdiction that administers
justice according to the laws of the land. As law students, some of which are likely to end up being
judges, it is pertinent that we study the way legal reasoning in the judicial process occurs.
Legal reasoning in judicial process has been defined by A.O Sanni as

“The process of careful thinking by a judicial officer in the course of resolving legal issues presented by a
party to a legal action before his court for determination.”

In dealing with the subject of legal reasoning in judicial process, I shall be highlighting on the shifting of
fact, shifting of law and judicial precedent.

SHIFTING OF FACT
The facts of a case are the versions of the story that has been accepted by the court after being
satisfactorily proved by the party on whom it lies to be proven. Different parties at different times would
have to establish their own version of the fact before the court. The process by which the responsibility of
proving the fact moves from one party to another is called the shifting of fact.

In civil cases, the initial burden of proving a set of facts lies on the plaintiff. If after proving his facts, the
defendant disagrees with the plaintiff’s version, the defendant would have to prove his own story. If the
facts in issue are admitted by both parties, those facts would be accepted by the court.

Thus, according to the provision of S.136 (1) of the Evidence Act 2011, the burden of proving any fact
lies on the person who wants the court to rely on those set of facts.
In criminal cases, the burden rests on the prosecution to prove its case beyond reasonable doubt. The
burden of proof doesn’t normally shift to the accused. This is backed by the provision of S.36 (5) of
the Constitution which provides that in a criminal case, an accused would be presumed innocent until
proven guilty.

Also, in the case of Okagbue vs Commissioner of Police (1969) NMLR 233, it was held that in a criminal
case, it is not for the accused to prove his innocence. However, there are instances in which the accused
has to prove his innocence. They include:

 Where the accused raises the defence of exemption or qualification from the provision of law
creating that offence; 139 (1) Evidence Act 2011.
 Where a statute specifically places the burden of proof on the defendant.
 Where special facts are within the knowledge of the accused; 140 Evidence Act 2011.
 Where the accused raises the defence of intoxication or insanity.

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SHIFTING OF LAW
Shifting of law occurs in a situation in which one party relies on a law that is either inapplicable or out of
date. The burden of bringing this to limelight rests on the party that knows about this flaw. If none of the
parties know about the flaw in the law, the burden of bringing this to limelight shifts to the judge. This is
due to the fact that juria novit curia(The court knows the law). Also, ignorantia judicis est calamitias
innocientis (the ignorance of the judge is the calamity of the innocent).

JUDICIAL PRECEDENT
Judicial precedent originates from the principle of stare decisis which means ‘let the decision stand’. It
means that similar cases must be treated alike. The reason for this is to achieve uniformity and certainty in
the administration of justice. Judicial precedent has been defined in the case of Global transport vs free
enterprises Nigeria limited (2001) 2 SCNJ 224@243 as a golden rule in which decisions of higher courts
in the land are binding on lower courts. And decisions of courts of co-ordinate jurisdiction are for all
intents and purposes binding between these courts except if the previous decision was made per incuriam.

It’s not all the aspects of the judgement that are relevant in determining the principle decided in a court. It
is the ratio decidendi that is relevant in determining the judicial precedent. However, the other parts of the
judgement are not entirely useless. The other parts of the judgement are referred to as obiter dictum.
Although an obiter dictum is not really a present judgement, in a later case, it can be adopted as a ratio
decidendi.

With all these, can it then be contended that judges make law? Yes, by all means, however, their law is
not legislation because it wasn’t passed by the national assembly. Also, judicial precedents can either be
binding or persuasive. Decisions made by court of higher jurisdiction are binding on courts of lower
jurisdiction. However, decisions by court of co-ordinate jurisdiction are persuasive.

HIERARCHY OF COURTS
The hierarchy of courts is the arrangement of courts in the method through which appeal flows. If
judgement at the lower court is not satisfying, appeal can be made to the higher court in order to get
redress and justice. I would highlight the courts starting from the lowest.

Magistrate or District Courts

This is just a single court, it transforms to a magistrate court in the hearing of a criminal case while in the
hearing of a civil case it becomes a district court. These are courts that are regarded as courts of inferior
jurisdiction. There are a two adduced reasons for this. Firstly, it is not listed among the courts in S.6
(5)(a) – (i) CFRN 1999 as amended. And section S.6 (3) provides that the courts that are mentioned in
the previous section are courts of superior record. By implication, courts that are not mentioned are courts
of inferior record. The second reason for this is that they cannot punish contempt ex facci curria.

The decisions of magistrate courts are bound by decisions of the higher courts but their own decisions do
not bind any court. Also, they are not bound any of their previous decisions.

The High Court/Sharia/Customary Court of Appeal

Directly above the district/magistrate court are the High Courts, Customary Court of Appeal and Sharia
Court of Appeal. Pursuant to S.6 (5) CFRN 1999, we have the Federal High Court, State High Court and
High Court of the Federal Capital Territory. Of these three, the State High Court has the widest
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jurisdiction. It should be noted that Customary and Sharia Courts of Appeal are not bound by judicial
precedent. This is because they are not of common law origin. Also, they hear appeal on cases from the
Area courts. While the High Courts hear appeals from the magistrate court.

These courts are referred to as courts of co-ordinate jurisdiction therefore they are not bound by previous
decisions of another High Court. At best, the decision of one High Court is persuasive on another High
Court. However, it is not expected for a High Court to depart from another High Court’s decision except
in good cause.

A State High Court has wide jurisdiction unlike a federal High Court which has a more limited
jurisdiction as provided in S.251 of the constitution. Thus, if a state High Court makes a decision on a
matter of federal application, it binds all magistrate courts in the country. If it makes a decision on matters
of state application, it only binds courts of inferior jurisdiction in the state.

COURT OF APPEAL
Directly above the High Court is the Court of Appeal. There is only one Court of Appeal in Nigeria but it
has different divisions over the country. Thus, decisions by the Court of Appeal in Ilorin division is
treated as its own decision in the Court of Appeal Lagos state. The question then is how does the Court of
Appeal deal with judicial precedent?

It is trite that the Court of Appeal is bound by decisions of the Supreme Court. However, in dealing with
decisions of a Court of Appeal in another division, the Court of Appeal is bound to an extent. In civil
cases, it is bound by the decision of another Court of Appeal except in the situations provided for in the
case of Young vs Bristol Aeroplane Co:
 If the decision is given per incuriam

 If there are two or more conflicting decisions of different courts of appeals, it can follow either of
them or choose to follow none of them.
 When a decision of a Court of Appeal is in contrast with a decision of the Supreme Court.

However, in criminal matters, a Court of Appeal is not bound to follow the decisions of other courts of
appeals. This is because of the very nature of criminal law in which each cases should be treated on its
merit. Strictly following a previous decision could lead to irreparable damage. This may be due to the fact
that it is better for the court to set free 10 guilty persons than to convict a single innocent person.

THE SUPREME COURT

This is the highest court in the land and its decisions on any matter is final S.235 CFRN 1999. Its
decisions are binding on all courts throughout the country.

The Supreme Court is not bound by any previous decision of any court anywhere. However, it follows its
previous decisions in order to maintain certainty and uniformity in the administration of justice. The
Supreme Court may however choose to depart from its previous decisions in the following situation:
 If the previous decision is given per incuriam.

In the case of Bucknor Maclean vs Inlaks Nig Ltd [1980] the court departed from its decision in two
previous cases: Shell BP vs Jammal Engineering ltd and Owumi vs Paterson Zochonis and co Ltd due
to the fact that adherence to these precedents could lead to substantial injustice.
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 If following the previous decision would lead to substantial injustice.
 When a legislation nullifies the decision made in the previous judgement.
 If it is faced with two previous conflicting decisions of its own, it can choose to follow anyone.

In the case of Odi vs Osafile the court reasoned that the law was made for man and not man for the law.
Also, man isn’t infallible and so are his thoughts. Therefore if it is pointed out that there has been a
substantial error in a previous decision, the court should have the jurisdiction to correct that decision.

The Burden of Proof

The burden of proof is simply the party whose responsibility it is to establish evidence before the court.
When it comes to civil cases, the burden of proof rests on the party that asserts. This could either be the
plaintiff or the defendant. For instance, if in a land dispute,the defendant claims that the land belongs to
him by right of first settlement, he has to prove it before the court. It is not the plaintiff’s responsibility, in
this instance, to disprove the defendant’s claim of title to the land.

The court rules in civil cases based on the preponderance of evidence. This means that the party with the
better evidence wins the case. In the case of Ayanru vs Mandillas; Mandilas stated that Ayanru signed
an agreement that extended the lease that was operating between them. Ayanru stated that he was illiterate
and did not sign the agreement. Mr Ayanru brought his son as a witness to the fact that the signature on
the contentious agreement was not the recognised signature of his father.
Mandilas also brought a witness to testify that the signature was Ayanru’s signature. In addition,
Mandilas tended other documents signed by Mr Ayanru. The court held that Mr Ayanru did not reliably
prove his assertion that he didn’t sign the document in question.

The court stated that just the testimony of his son isn’t enough to prove that he didn’t sign the document.
Mr Ayanru’s evidence weighed lesser than the testimony of Mandilas on the balance of probability. Since
he has been unable to adequately prove his case, the court would believe the testimony of Mandilas.

In Adake vs. Akun (2003) 7 SC 26, both parties vied for the position of the district head of the Mangu
Local Government. The King Makers voted Mr Adake for the position. Mr Akun was disatisfied with this
and sued in the trial court to cancel the election.

He contended that according to the provisions of the Native Law, the meeting to select the district head is
to be presided by the Secretary to the Traditional Council. In the present case, it was presided by the
Secretary to the Local Government.
Mr Adake contended that the election was valid because the Secretary to the Local Government was
appointed as the secretary to the traditional council.

The trial court ruled in favour of Mr Adake and as a result, Mr Akun appealed to the Court of Appeal.
The Court of Appeal allowed the appeal, leading to the present appeal against the decision of the court of
appeal by Mr Adake.

Mr Adake contended that the Secretary to the Local Government was appointed as the secretary to the
traditional council but he didn’t bring substantial proof to back up his claim. As a result of his inability to
discharge his burden of proof, the Supreme Court dismissed the appeal and held that the election of Mr
Adake was null and void.

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The burden of proof is a different ball game when it comes to criminal cases. In these cases, the burden of
proof always rests on the prosecution and it never shifts. The only time the burden of proof shifts to the
defendant is when he pleads a defence to his case like the defence of mistake.

All Relevant Facts Must be Proved

This means that a party must prove all the facts that are relevant to resolving the case. There are
exceptions to this rule of evidence. One of the exceptions is when the court takes judicial notice of a fact.
The court applies this for facts that are so commonplace that tendering evidence in order to prove them
would be nothing short of ridiculous. An example of this is the fact that Nigeria is a country in Africa. If a
party’s claim depends on the fact that Nigeria is an African country, he doesn’t have to prove it because it
is generally accepted knowledge.

The court applies this for facts that are so commonplace that tendering evidence in order to prove them
would be nothing short of ridiculous. An example of this is the fact that Nigeria is a country in Africa. If a
party’s claim depends on the fact that Nigeria is an African country, he doesn’t have to prove it because it
is generally accepted knowledge.

The second instance where a person doesn’t have to prove a relevant fact is when the fact in question was
uncontended during the pleadings. The pleadings are the formal documents in which both parties give
their own side of the story. If the pleading of both parties agree on a particular fact, it means that they
agree to it and as a result, there is no need to prove it.
Not all Facts are to be proved.

As already stated, parties do not have to prove all facts before the court. Parties don’t have to prove some
facts that are inconsequential to the case. For instance, in the case of theft, it would be inconsequential to
prove that the accused wore a black shirt and a white tie. This does not relate to the case at hand and as
such, the prosecution doesn’t have to prove it.

In the case of Ebhota vs PIPDC LTD (2006) NSCQR 317 at 333-334, the court, per Ejiwunmi JSC
stated:

While there is no doubt that parties are bound by their pleadings, it is not expected that all facts germane
to the case of a party must be pleaded.

The Modes of Proving Evidence

Under the Nigerian law, certain kinds of evidence hold water before the court. They include real
evidence, circumstantial evidence, documentary evidence and electronic devices. In the case of Navy
vs Lambert (2007) 11 MJSC 1, Tab Mohammed JSC stated:

The guilt of an accused person may be proved by a confessional statement, circumstantial evidence or
direct evidence from eye witnesses to the commission of the offence.

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METHODS OF SOCIAL CONTROL THROUGH LAW
Before a society can be said to be sane, there have to be means by which that society regulates the
conducts of its members. If everyone in a society is left to do as he wills, there might end up being no
society. This is due to the fact that the absence of regulation would breed anarchy, making life “nasty,
brutish and short”. It is due to this that every society has means by which it regulates the conduct of its
members. This regulation of conduct is known as social control.
Methods of social control could either be formal or informal. Law is a formal method of social control
while informal methods include ostracism, ridicule, gossip and censure.
What is going to be discussed is the formal method of social control. Thus, the methods of social control
through law would be the focal point of this write-up.
According to Farrar and Dugdale , the following are the methods of social control through law:
1. The Penal technique
2. The grievance remedial technique
3. The private arranging technique
4, The constitutive technique
5. The administrative regulatory technique.
6. Fiscal technique.
7. The conferral of social benefit technique
The above would be substantiated below:

The Penal Technique

The word “penal” has been defined by the Black’s Law Dictionary 9th Edition as
“Of, or relating to, or being a penalty or punishment, especially for a crime”.
From the meaning of the word “penal” we can deduce that the penal technique is the one which involves
the regulation of crime in the society. The penal technique is one in which the law pronounces some
actions as prohibited and it provides punishment for engaging in such actions.
Thus, examples of laws in relation to the penal technique include the Criminal Code, Penal Code,
Economic and Financial Crime Commission Act and so on. For instance, the Criminal
Code in S.315 pronounces that murder and manslaughter are offences. It further provides in S.319 that
the punishment for the crime of murder is death, while in S.325 it provides that the punishment for
manslaughter is life imprisonment.
There are some alternatives to the penal technique which are: non-intervention, warning or caution,
reciprocity and self-help, compounding.
Non-intervention occurs in a situation in which the act, although frowned upon, is not punished by the
state. For example, in some societies, adultery is not a crime. In others, it is regarded as a crime. In the
case of Aoko vs Fagbemi (1961) 1 ANLR 400, the court, while trying a case in southern Nigeria, held

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that adultery was not a crime since it wasn’t prescribed as such by a written law. Adultery is only a crime
in the North due to the provision of S.387 of the Criminal Code .
Warning or caution occurs in a situation in which it is more expedient to warn the offender instead of
punishing him. This occurs in the instance of juveniles and first offenders.
Reciprocity and self-help is a situation in which, instead of reporting a matter to the police, the aggrieved
parties decide to mete out justice on their own. This could lead to jungle justice and could result in the
punishment of innocent persons. This step is frowned upon by the law and thus, anyone who engages in
this act, would be liable.
Compounding occurs in a situation in which, instead of prosecuting the crime, the aggrieved parties
decide to settle it out of court upon the fulfilment of some conditions by the offender.
The Grievance Remedial Technique
The grievance remedial technique, unlike the penal technique, is not related to criminal law. It deals with
civil matters. It has been defined by Professor Summers as a technique which
“Defines remediable grievances, specifies remedies … and provides for enforcement of remedial awards.”
What this means is that this technique provides for instances in which a person would be held to have
breached another’s right, it provides compensation and it also accounts for means for enforcing these
compensations. The grievance remedial technique is used in areas of law like Law of Contract,
Commercial Law, Law of Torts, and Law of Property and so on.
Some of the remedies under this technique include: damages, specific performance, injunction, restitutio
in integrum etc.
Alternatives to this technique include: the penal technique, private settlement, insurance and arbitration.
The penal technique could be regarded as an alternative to the grievance remedial technique due to the
fact that a number of grievances are also regarded as crime. Examples include assault, battery, false
imprisonment etc. Thus, when any of these grievances occur, the aggrieved party can choose to either
pursue the case criminally or take a civil action.
Private settlement occurs in a situation in which the parties, at the time of the contract, have already spelt
out means by which an aggrieved party should be compensated.
Insurance is relevant especially in developed economies. In these countries, when there is an injury
suffered, like motor accidents, instead of suing, the aggrieved party(s) can decide to refer the matter to
their insurance companies.
Arbitration occurs in a situation in which, instead of going to court, the parties decide to refer the matter
to an arbitrator. The arbitrator is usually skilled in the area of business under issue. Arbitration is a more
effective and less time consuming alternative. Arbitration processes could take days, compared to
litigation which could take months or years before conclusion.
The Private Arranging Technique
This occurs in a situation in which the law doesn’t bind every member of the society. This particular law
only binds those who choose to be bound by its provisions. An example of this is the Marriage Act which
regulates legal marriages. A person has a right to either marry under the act, customarily or Islamic ally.
If he however chooses to marry under the Marriage Act, he has to abide by its provisions.

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For example, the Marriage Act provides in S.47 that whoever contracts a customary marriage after
contracting a marriage under the Act, such person would be liable for five years imprisonment. Thus,
anyone who doesn’t subject himself to the provisions of this act, can decide to act contrary to it without
any repercussions. But, for a person who decides to be governed by the Act, such person must abide by its
provisions or face the music.
The Constitutive Technique
The constitutive technique is the one that concerns itself with the formation of legal personalities. It
encompasses all laws that deal with the registration of companies and organisations. An example of this
law is the Company and Allied Matters Act which deals with the incorporation of companies in
Nigeria. According to the provision of S.37 of the Company and Allied Matters Act, when a company
is incorporated, it becomes a legal personality.
The concept of legal personality was established in the case of Salomon vs Salomon (1897) AC 22. In
this case, Salmon incorporated Salomon & Co Ltd and he sold his leather making business to this
company. The only shareholders were members of his family. Salomon borrowed the company he
incorporated some amounts of money.
Subsequently, the company went into financial crises and it was to be determined who was to be paid
first, Salomon, who was a secured creditor, or an outside creditor. If Salomon was paid first, there would
be nothing to pay the outside creditors. The solicitors for the outside creditors argued that Salomon & Co
ltd was a sham and was the same with Salomon. Salomon lost at the trial court and the court of appeal.
However, on appeal to the House of Lords, the decisions of the lower courts were reversed. The House of
Lords held that Salomon co Ltd was a different person from Mr. Salomon. Thus, since under normal
circumstances, Mr. Salomon was to be paid first, he should be paid first.
Administrative Regulatory Technique
This method of social control is one in which the government, in order to protect the citizens, regulates
the activities of private businesses. If there is no regulation, there is every likelihood that the capitalists
would exploit the citizenry.
The government does this through the establishment of some regulatory agencies like the National
Agency for Food and Drug Administration and Control (NAFDAC), the Nigerian Communications
Commission (NCC), Standard Organisation of Nigeria (SON) and so on. For example, NAFDAC is
established by the provision of S.1 of the National Agency for Food and Drug Administration and
Control Act.
The Fiscal Technique
This method of social control involves the government using taxation to control the behavior of citizens.
For goods that the government wants to discourage, it imposes higher tax rates on them. It also involves
the use of fines in order to discourage some actions. For example, in 1998, in order to reduce the rate of
gas flaring the fine for gas flaring was increased by 1900 percent.
The government uses the fiscal method through the enactment of statutes like the Personal Income Tax
Act and the Custom and Excise Management Act.
The Conferral of Social Benefit Technique

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This occurs in a situation in which the government, through the instrumentality of the law, strives to
provide basic amenities for the populace. It does this by establishing schools, hospitals, building roads
and so on.
For example, the University of Ilorin was established by the provision of S.1 of the University of Ilorin
Act. This Act provides the basis on which the administration of the university is operated. It can be seen
as a way in which the government tries to make education available for the populace.

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The Legislative Process

The NASS Legislative Process

Generally, in presidential systems of government, the processes a bill goes through before becoming a
law is essentially the same. Countries, however, have minor differences. The processes of law making
generally requires a long period of deliberation and consideration of the many interests and implications
of the bill. A summary of the processes and the tasks involved are discussed below.

STAGE ONE
The first stage is the identification of the need for a bill. This bill can be a new one, introducing a new
idea not yet covered by an existing law. It can also be an amendment to an existing law, which is thought
to be inadequate either because of some changes in the policies of the government or changes in the
society.
The Anti-Corruption law recently passed by the National Assembly, for example, addresses corruption
more than previous laws, which were found to be inadequate. It can also be that the existing law is
considered to be infringing on another fundamental human right, that is, it goes against provisions of the
Constitution that guarantees a right or rights of Nigeria citizens. This is always the case with military
decrees.

A bill can be initiated by anybody but only a Member of the House or a Senator can introduce it on the
floor of the House or the Senate. Bills are grouped into three categories: Executive, Member and Private
Bills. A bill is like a proposal or an idea that has to be deliberated upon and passed into law by the
National Assembly. Before a bill is introduced, a compendium of its financial costs must be calculated
and attached. In other words, the amount that would be needed in executing specific aspects of the law
when it is passed must be computed or calculated so as to know whether the government would be able to
accommodate it in the current or the future budget. For example, in passing the Niger Delta Development
Commission (NDDC) bill, the government gave a breakdown of what it would take to make the
Commission function in terms of staff, transport, accommodation and other facilities that would assist or
enhance the work of the Commission. It also stated the sources of such funds the Commission would
receive.
When a bill is prepared by the Executive, it has to be forwarded to the Speaker of the House and the
Senate President with a cover letter from the President. A bill from Members of the House of
Representatives is presented to the Speaker while the one from Senate is presented to the Senate
President. Bills from the Executive branch of government can at times be discussed concurrently (i.e. at
the same time) in both the Senate and the House of Representatives. Bills from the member and private
individuals are always discussed in the chamber of its origin first before it is sent to the other for passage.
All bills are numbered or marked according to their chamber of origin. For example, a bill from the House
of Representatives is marked HB (House Bill) while the one from the Senate is marked SB (Senate Bill).
An Executive bill is marked with "Executive" printed on the title page of the bill. It is printed tiny and to
the right hand side of the page.
On the receipts of a bill, the Speaker forwards it to the Rules and Business Committee while the Senate
President sends it to the Committee on the Rules and Procedure. These Committees then look at the bill to
determine whether it meets all the standards in draft and presentation. If not, the bill will be forwarded to
the Legal Department of the National Assembly for re-drafting and further advice. After this; the
Committee then sends the bill for gazetting and for subsequent stages: first, second and third readings.
Executive bills are gazetted or published in the House/Senate Journal once, while those introduced by

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Members are published three times before they can be presented to the House/Senate for consideration.
The House Rules and Business Committee or the Senate Committee on Rules and Procedures is also
expected to determine the day and the time a bill is to be discussed in the House/ Senate. All bills must
receive three readings before they can be passed into law and the readings must be on different days.
Some bills can receive accelerated consideration i.e. on the same day based on their urgency and
significance for government policy. In that case, rules of the House/Senate are to be suspended for easy
passage. Examples of such bill that might receive accelerated hearings are the ones that are needed to
enable the president take urgent action on matters relating to national security.

STAGE TWO

First Reading

The Clerk of the House/Senate usually does the reading of bills scheduled on the House/Senate Calendar
(a schedule indicating the day and the time each bill will receive reading). S/he reads the short tittle of the
bill for the first reading and then proceeds to "table" it. The word "table" is used to mean the action by
which the Clerk places the bill on the table before the Speaker/Senate President.
Normally, at this stage there is no debate on the bill on the floor of
the House/Senate. The reading simply informs the Members that a particular bill has been introduced and
received from here, the bill moves to the next stage.

Second Reading

This period is when debate occurs on the bill. Usually speakers on a bill are allocated time of about five
or seven minutes to speak. Debate commences with a motion by the Senate or House Leader that the bill
be read the second time, if it is an Executive Bill. The motion must be seconded (supported) by any of the
other parties' leaders. When it is not seconded, the bill cannot be debated but in most cases, Executive
bills are allowed, as a matter of courtesy to proceed to a second reading.
However, if the bill is by a Member of the House or the Senate, the sponsor of the bill would move the
motion that it be read the second time. The motion must be seconded (supported) by another Member of
the House or Senate. Also, when a bill by a Member cannot get the support of another Member in the
House or Senate, it cannot be debated and hence stands rejected.
The person moving the motion, whether in the case of Executive or Member bill, is expected to highlight
the objectives, general principles and subject matter of the bill. He is also expected to state the benefits of
the bill if passed into law. If the House agrees to the motion, the Clerk will read the long tittle of the bill.
Immediately after this, Members must signify their intention to speak on the bill.
Two things can occur at this stage:
(i) The bill may receive the support of the majority of the House/ Senate and be allowed to move to the
next stage. Once it gets the needed support, it moves to the Committee stage.
(ii) The bill may be "Negatived" (killed) if it does not get the
support of the majority of the House or Senate Members.

When a bill is killed, it is taken off the table and cannot be

discussed until it is re-introduced at a later date.
After the debate on the general principles of the bill, it is referred to the appropriate Standing Committee.
The Senate President/Speaker of the House is empowered by the rules of both Senate and the House to
determine the relevant committee(s) to which the bill is referred.

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Committee Stage

This is the period when the committee assigned to deliberate on a bill examines it more critically. The
House and the Senate have two types of committees. The first one is the Committee of the Whole House
and the second is the Standing Committees. The House and Senate have many Standing Committees.
If the Committee of the Whole House is to discuss a bill, the Deputy Speaker of the House acts as the
chairperson. The Speaker would leave his/her seat and sit at the Clerk's seat. The mace too will be taken
to 'the lower table for the Committee of the Whole House deliberation to commence. In the case of the
Senate, the Senate President acts as the chairperson of the Committee of the Whole House and thus
presides over the Committees sittings. When the Deputy Speaker or the Senate President presides over the
Committee of the Whole House, s/he stops being addressed as the Deputy Speaker or the Senate
President. Rather, S/he is to be called "Mr. Chairman Sir" or "Chairperson Ma" for the period of the
Committee session.
As for the Standing Committees, the chairperson presides over the committee or, in his/her absence; the
Deputy stands in for him/her. Chairpersons of Standing Committees are appointed by the Senate
President/Speaker of the House.
Committees examine all aspects of the bill clause-by-clause and point-by-point. They also organise public
hearings on the bill. This may take place at
the National Assembly the National Assembly Complex or any other area or location the Committee
deems appropriate. Any member of the public or
expert(s) having interest in the bill may be allowed to attend the public hearing and make contributions to
the public debate of the bill. A member of the public can make suggestion(s) on any aspect of the bill, but
only a Member of the Committee can propose amendment to the bill. All amendments must be in line
with, and relevant to, the principle and the subject matter of the bill as agreed to at the second reading
stage.
Sometimes, however, a bill may touch on areas of two or more Standing Committees. When this happens,
the committee with dominant issues will take the bill while others will form subcommittees to consider
areas relating to them and report to the main committee. The main committee will collate all suggestions
and amendments of the "sub-committees" and report to the House/Senate. For example, all committees
are always involved in the "Appropriation Bill" (Budget) but they act as sub-committees to the
Appropriation Committee in the House/Senate. In other words, they report back to the Appropriation
Committee with their changes or amendments.
Committee of the Whole House
After the committee has concluded its work, it will report back to the Whole House/Senate in plenary
with or without amendments. It must beforehand ask the House Rules and Business Committee/Senate
Committee on Rules and Procedure to put the bill on the House/Senate Calendar (i.e. fix a date and time
for the hearing of the committee's report). It is important to note that Committee of the Whole House must
also report back to the House/ Senate. When it is reporting back, the Speaker or the Senate President goes
back to his/her former seat and the mace to return to its original position.
Whether it is the Standing Committee or the Committee of the Whole House that considered a bill, at
committee stage, chairperson is expected via a motion to report progress on the bill. Mutadis Mutadi (all
things being equal) a clean copy of the bill is prepared by the Clerk of each chamber.

Third Reading
After the report of the Committee and the deliberation of the Committee of the Whole House, a motion
may be moved that the bill be read the third time either immediately or at a later date and passed after
each chamber has certified the contents of the clean copy to be accurate.

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Generally, no amendment can be entertained after the third reading stage. However, if a Member wishes
to amend or delete a provision contained in the bill or to introduce a new provision, s/he must give notice
of his/her intention "That the bill be re-committed" before the motion for the third reading is moved. If
the motion is agreed upon, the House/Senate will dissolve itself into Committee of the Whole
House/Senate immediately or at a later date to discuss the amendments. After all necessary amendments,
the House/Senate will then proceed on the third reading and pass the bill.

STAGE THREE

The Clerk and the Clean Copy of the Bill

When a bill has been read the third time and passed, a clean printed copy of it, incorporating all
amendments will be produced, signed by the Clerk and endorsed by the Speaker/Senate President. The
copy will then be forwarded to the Clerk of the House or Senate as the case may be. The copy will be
accompanied with a message requiring the concurrence (passage of the bill or agreement) of the receiving
chamber (House or Senate). In the case of the Executive bill, both chambers will just exchange copies of
the bill since they both received copies and discussed the bill almost the same time.
When a bill is sent to either chamber for concurrence, three things may happen:
(i) The receiving chamber may agree with the provisions of the bill and hence pass it.
(ii) The chamber may not agree to some part of the bill and hence make amendments.
(iii) The chamber may not agree with the bill at all and therefore reject it in its entirety. This situation is
however rare and has never been witnessed in Nigeria.

In the event of the second situation, the Chamber from which the bill originated may agree with the
amendments or recommendations. But if the amendments are not agreeable to the Chamber, then a
Conference Committee of the two chambers will be constituted to work out any disagreement.

Joint Conference Committee

The Joint Conference Committee is normally constituted when there are differences in a bill passed by
both legislative chambers. Membership of the Committee is based on equality, usually six members from
each chamber with a senator acting as chairperson.
The mandate of the Committee is to harmonise the differences between the two chambers on the bill.
They cannot introduce any new matter into the bill at the joint conference committee. The decision of the
committee on those areas of differences is bidding on the chambers. Failure to accept the decision of Joint
Conference Committee may lead to a joint sitting of both the Senate and the House with the Senate
President presiding on the area of contention.
The report of the Joint Conference Committee is presented in both Chambers for consideration. If both
Chambers adopt the report, all the original papers are sent to the Clerk of the Chamber where the bill
originated. The Clerk puts together all the amendments and produces a clean copy of the bill which is sent
to the Clerk of the National Assembly who then sends it to President for his signature.
At the conference committee stage, members or select members of the Committees which considered the
bill originally meet and deliberate only on the areas of disagreement between the two Chambers. The
sitting of the Joint Conference Committee may be open or closed to the public. This will depend on the
subject matter under discussion and the view of majority of the Joint Conference Committee members.

STAGE FOUR

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President

Another way in which the President is involved in the act of law making is by signing bills into laws. A
bill does not become law until the President signs it. The Clerk of the National Assembly will “enrol” the
bill for the President's signature. Enrolment is the production of a clean copy for the assent of the
President. The Clerk of the National Assembly produces the clean copy, certifies it and forwards it to the
President.
The President has thirty (30) days to sign a bill sent to him/her by the National Assembly. If s/he
disagrees with the provision of the bill or some aspects of it, s/he can veto by withholding his/her
signature. Within the 30 days the President must communicate to the National Assembly his/her feelings
and comments about the bill. The President must state the areas S/he wants amended before s/he signs the
bill. If the National Assembly agrees with the President the bill can be withdrawn for deliberation on the
amendments suggested by the President.

However, the National Assembly is empowered by the Constitution to overrule the veto of the President.
If, after 30 days, the President refuses to sign the bill and the National Assembly is not in support of the
President's amendments, the two Chambers can recall the bill and re-pass it. If the bill is passed in the
form it was sent to the President by two-third majority vote in both Chambers, the bill automatically
becomes a law even without the signature of the President. This happened in the case of the Niger Delta
Development Commission Bill. The two Chambers passed the bill into law after s/he President failed to
sign it within the time that is prescribed for him to do so.

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OBAFEMI AWOLOWO UNIVERSITY, ILE IFE

FACULTY OF LAW
2015/2016 ACADEMIC SESSION RAIN SEMSTER EXAMINATION PART II LL. B
NIGERIAN LEGAL METHOD I PUL 101
INSTRUCTIONS

1. Attempt two questions in each of the sections

2. Time Allowed: Three hours

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