Sources of the Nigerian law of Torts are several. However, the most prominent among them include:
- The Common Law of England
- The Doctrines of Equity
- Case Laws.
The above would be further elaborated below
The English Common Law
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 unsensible and accepted those which were sensible. This led to the conglomeration of different customs which were then applied all through the realm. This then metamophorsed into the common law of England.
The common law was able to effectively evolve through the principle of stare decisis, which means “let the decision stand”. This principle meant that decisions given in earlier cases were to be applied to subsequent cases. This gave a lot of certainty and uniformity in the application of common law. The use of stare decisis/judicial precedents made the common law to acquire the characteristics of a good law: certainty, uniformity and consistency.
English writers have come to a consensus that the process for the formulation of common law was complete around 1250 AD. It was at this time that Henry de Bracton wrote his famous book: Treatise on The Laws and Customs of England. The book is regarded as the first exposition on the common law.
Today, the common law of England is in application in a lot of countries which are regarded as the commonwealth. Nigeria by virtue of it being colonised by Britain also has the common law being applied in it.
The Doctrine of Equity
With time, the practice of common law came to be rigid it worked great hardship on the people. This was in part due to its system of writs and its legalistic nature. This prompted the king to set up a court of equity headed by the Lord Chancellor.
The Lord Chancellor was usually a bishop, thus, judgment in the court of equity was according to biblical standards of equity, fairness and natural justice. Common law and equity were subsequently merged into one in the year 1875 by the Judicature Act.
Equity and common law are both part of the English Legal system which Nigeria inherited from its colonial masters.
Case Law or Judicial Precedent
Case law is embodied in the principle of stare decisis which means “let the decision stand”. It is a principle in which judgement decisions made by courts of higher jurisdiction are binding on courts of lower jurisdiction in cases which have similar facts. This practice of following previous decisions has helped to make the law more certain and uniform.
The decisions of courts are binding due to the fact that according to the provisions of S.6 (1) of the 1999 Constitution, the judicial powers of the Nigerian Federation are vested in the courts. The Nigerian court structure is reflected as set out below:
- The Supreme Court
- The Court of Appeal
- State High Court; Federal High Court; Customary Court of Appeal; Sharia Court of Appeal.
- Magistrate Court; Upper Area Court; Customary Court Grade 1; District Court
- Area Court; Customary Court; Native Court
- Village Council; Chief in Council.
Some of these courts have exclusive jurisdiction in respects of certain aspects of law.
Some examples of judicial precedent in action include cases like:
Rylands vs Fletcher(1866) LR 1 Exch 265: In this case, Blackburn J, as he then was, laid down the rule that if a person brings onto his land something likely to do mischief and it escapes, doing mischief to another person, the owner would be held strictly liable for injuries caused.
Donoghue vs Stevenson: in this case, Lord James Atkin established the principle of duty of care , when it exists and to whom it is owed. The rule is that a person who’s action is likely to cause harm, should be careful and conduct himself in such a manner to avoid harming anyone.
Legislation as opposed to case law and common law, are laws made by those empowered to do so, which could range from a legislature in a civilian regime to a decree given by military governments. Legislation is also made via delegated legislation.
What distinctly sets legislation apart is that they are made for a specific situation and are divided into sections.
By the provision of S.4 (2) of the 1999 Constitution, the National Assembly has powers to make laws for the peace, order and good government of the Federal Republic of Nigeria. Laws governing the state are also made by state houses of assembly; S.4 (7) CFRN 1999.
Legislation appears in the form of Acts, Laws, Decrees, edicts, Bye Laws and delegated legislation.
- Lecture on Law of Torts by Professor R.A Salman
- National Open University
- The Constitution of the Federal Republic of Nigeria 1999 (As amended)
- Henry de Bracton: Treatise on The Laws and Customs of England