SOURCES OF NIGERIAN LAW

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. To get an in-depth explanation of these sources of law, see the primary sources of Nigerian Law .

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.

 

NIGERIAN LEGISLATION

This is the most important source of Nigerian law. 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.

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.

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.

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.

Author: Olanrewaju Olamide

Olamide is an avid reader who believes that no knowledge is wasted. If he is not surfing the internet, he would be doing something else to get more information, whatever that is.

59 thoughts on “SOURCES OF NIGERIAN LAW

    1. That depends on the referencing style used. Generally, regardless of referencing style, the important thing is the link and the title of the post in question.

  1. am John Sifon
    pls good people I have exams tomorrow n everything I have read here.hmmmm I can’t understand… pls I need ur idea on how to make it tomorrow.. tnx

    1. Hi. I am sorry I am replying this late. How was your exam? If there is anything you do not understand, just let us know where we can help you.

    1. I haven’t come across the nomenclature “extended English law” before. However, from the little I can deduce, extended English law would have to do with English law that was enacted after 1st January 1900. This English law is not binding on Nigerian courts but can be extended to apply in certain cases.
      On the other hand, received English law is English law that was enacted on or before Jan 1st, 1900. Received English law is binding on Nigerian courts except if there is a local legislation on the same issue.

        1. Well. In summary, Islamic law has two major sources, the textual and non-textual. The textual comprises of the Quran and the hadith while the non-textual consists of the tools of ijtihad like Qiyas, Ijma etc. I am not an Islamic Law expert, so I can’t really go in-depth regarding this.

          However, Islamic law became a source of Nigerian law by virtue of the fact that it was the legal system that operated in the North before the advent of colonialism. With colonialism, it had to be mixed with the English common law and indigenous customary laws to give us what we now have today.

  2. Hello… I have a qrecentation next week. I’m to list and discuss the characteristic features of the Nigerian Legal System. I need your helq qls. Thanks

  3. Law is not evolutionary, Discuss?
    pls, am submitting ds @ school and i dont understand it. Help me out. thank you.

    1. Is it compulsory to agree with the topic? If it is, an example of non-evolutionary law is Islamic law. The aspects of Islamic law that are not subject to change are those that deal with matters of religion and worship. Also, laws that have been clearly provided for in the Quran and Sunnah cannot be changed.

    1. Islamic law is usually classified under customary law. Although, people of the Muslim faith would argue that Islamic law is more than customary law; but that is just for argument sake. Under the Nigerian law, the repugnancy test, provided in S.18 of the Evidence act, which applies to customary law also applies to Islamic law.

      1. Hello, please is local legislation same as Nigerian legislation, I was told that Local legislation is one of the sources of Nigerian law but am seeing Nigerian legislation… am confused

    2. THE ISLAMIC LAW IS SOURCE OF NIGERIAN LAW AND THIS COULD BE SUPPORTED BY TWO FACT, FIRST, THE EXISTENCE OF THE PENAL CODE LAWS WHICH WAS TINKERED OUT BY MUSLIM CLERICS AT THE INVITATION OF SIR AHMADU BELLO TO COME TO NIGERIA AND MAKE A BODY OF ACCEPTED LAWS FOR THE HETEROGENOUS PEOPLE OF NOTHERN NIGERIA AND SECONDLY THE CIVIL ASPECT OF SHARIA ”THE MUL’AMALAT” WHICH WAS INCORPORATED INTO THE 1979 CONSTITUTION AND ALSO WITH THE COMBINED EFFORTS OF S.38,4[7],6[2],5[K] 0F THE 1999 CONSTITUTION GAVE THE CONTINUED EXISTENCE OF THIS CIVIL ASPECT OF SHARIA IS PERMITTED.

  4. Need to the differences between the customary and Islamic law and why the later is inculcated into the Nigeria legal system, thank u.

  5. Need to know the differences between the customary and Islamic law and why the later is inculcated into the Nigeria legal system, thank u.

    1. The distinction between them is somewhat controversial. In the strict sense, customary law is any law that isn’t English Law. The repugnancy test applies to both customary and Islamic law and as a result, some people have said that Islamic Law is also customary law.
      However, some people (largely Muslims) argue that Islamic Law is not customary law. Rather, it is a legal system in its own right as English Common Law. They argue that this is due to the fact that Islamic Law is a legal system that is practised in many countries apart from Nigeria.
      Basically, customary law is any law that is indigenous to Nigeria while Islamic law is law that is derived from Islam.

      For your second question, Customary and Islamic Law are both in the Nigerian Legal system. The constitution provides for the establishment of the Customary Court of Appeal along with the Sharia Court of Appeal.

      1. sir,just for you to take cognizance. Extended English laws are laws which were operational in the defunct British empire ‘and which were extended to the various colonies by the colonial validity act of 1865,as well as the foreign jurisdiction act of 1890. As a matter of fact,most of such laws have ceased operation in Nigeria beginning from independence.

  6. please good people of Nigeria I need help base on the features of Nigeria company and allied matter act of 1990/2004 I have search for it but I don’t get it atall

    1. The common law system that we practice today has Christian roots. Although over the years, it has evolved away from religion, it doesn’t detract from the fact that the common law has Christian roots and as such, there is no need for a Christian law when there is the common law.

  7. as a guest lecturer you are invited to deliver a lecture on the topic customary law is the only source of Nigeria law. pls I want a clear understanding of dis question nd how to answer it thanks.

    1. Well. Factually, customary law isn’t the only source of Nigerian Law. But you can argue that customary law is the only source of Nigerian law since the English common law originated from the different customary laws of England.

  8. Hello nice meeting u please i have exams in 3weeks time and am not prepared for it .And i don’t want to have carryover in any of my paper we offer 9courses they’re”purchasing,principle of law,marketing,business maths,business administration,economic,accounting,citizenship education and public administration and management

    1. You should find the right time to read. Personally, whenever I feel dizzy, I take a short nap of say, like ten minutes, to clear the sleep from my eyes. I also listen to music while reading to prevent dizziness and distraction. However, everyone has his/her own style of reading, you just have to find the one that is best for you.

        1. Ten is quite a number. If by subsidiary instruments, you mean subsidiary legislation, we have:
          Court rules, government directives, agency regulations, university regulations and so on. They are basically laws that aren’t made by the legislature. So, you could just use delegated legislation for as many government agencies as you can think of.

  9. Please I have text next week monday. Question. Identify the title of the heads of the following court.
    1. Sharia court of appeal
    2. Customary court of appeal
    3. National industrial court of appeal
    4. High court of appeal federal tertiary Abuja
    5. Federal high court
    6. Supreme court

  10. i have law exams in two days time but i could not grab the examples of contract laws and law of torts,i mean something like cases. i failed two times and i am determined not to fail again. My course materials, i mean textbook is never so easy to understand. i need help

  11. Mr Olanrewaju Olamide Thank you for education that you explain, please sir, can you direct me to some text book that added islamic law as one of sources law in Nigeria, I mean I need reference on Islmaic law is one of source of Nigerian constitution. Thank. ,

    1. To understand the levels of legal authority and when to use them. For instance, if you know that judicial precedent is a primary source while legal opinions are secondary, you’ll know how and when to use them effectively in your arguments.

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