The Sources of Law in Nigeria
On the meaning of ‘Sources of Law’
Frank in his book ‘General Principles of English Law’, 1975, identified two meanings of sources of law, with the first being:
‘…where rules of law may be found, such as law reports, copies of Act of Parliament, law textbooks and other written materials’
The second meaning was ‘from where law comes’ i.e. where and how the legal rules which today govern us originated. It is in this light that Nigeria has two sources of law mainly and namely:
A) Primary sources and
B) Secondary sources
A) Primary Sources: refers to those sources which have compelling effects on our courts and legal system such that their rules are surely observed. They are:
v The English law (both received and extended)
v Nigerian Legislation and Subsidiary Legislation
v Nigerian Judicial Precedents
v Nigerian Customary Law
v The international law
B) Secondary Sources: these take on the first meaning as given by Frank and are of persuasive effects on the courts and legal system. They are only resorted to when there is paucity of information on the particular subject matter from the primary sources. These include law textbooks, reports, digests, periodicals, etc.
The English Law
The English Law as a source of law in Nigeria comprises mainly of
v The Common Law
v The Principles of Equity and
v Statutes of General Application
These laws are today operational in our legal system by virtue of some reception clauses in our legal system. For example, S.14 of the Supreme Court Ordinance, 1914 provides:
‘Subject to the terms of this or any other ordinance, the Common Law, the Principles of Equity and Statutes of General Application which were in force in England on 1st of January 1900 shall be in force within the jurisdiction of this court’
Further, S.45 of the Interpretation Act of 1964 affirms this position.
The Common Law
This refers to a body of legal principles administered by the Old Common Law Courts in England before the passing of the Judicature Act of 1873-75. They were largely unwritten customs which were common to England and Wales as opposed to local customs which only applied to some parts of the country. They are regarded as the commonsense of the English community as formulated, developed and administered by their forefathers.
The Principles/Doctrines of Equity
These refer to a body of rules formulated, developed and administered by the Chancery Division in England in order to mitigate the harshness of the common law and provide remedies absent there-from. This body of rules/principles prevails over the Common Law in the event of a clash between them. See Earl of Oxford’s case (1615) 1 Re’ Ch.1
Statutes of General Application
These refer to certain obsolete laws/statutes which were in force in England on or before 1st January, 1900 as are now made applicable to Nigeria by virtue of various reception clauses in our laws.
However, it should be noted that what constitutes a Statute of General Application has not been clearly defined by our courts, but may be ascertained by the ‘rough but not infallible test’ as evolved by Osborne CJ in Attorney General v John Holt & Co Limited (1910) 2 NLR 1, P.21 where he said:
‘…two preliminary questions, can however be put by way of a rough but not infallible test, viz: (1) by what courts is the statute applied in England? and (2) to what classes of community in England does it apply? If on the 1st January, 1900, an Act of Parliament were applied by all civil and criminal courts, as the case may be, to all classes of the community, there is a strong likelihood that it is in force within the jurisdiction. If on the other hand, it were applied only by certain courts (e.g. a statute regulating procedure), or only to certain classes of the community (e.g. an Act regulating a particular trade), the probability is that it would not be held to be locally applicable.
Further, the following English Statutes have been held to be of general application with respect to our legal system:
v Statutes of Frauds, 1677, in Malomo v Olusola (1954) 21 NLR 1
v Infant Relief Act, 1874, in Labinjoh v Abake (1924) 5 NLR 33 , etc
Nigerian Legislation and Subsidiary Legislation
Nigerian legislation refers to laws passed by the competent legislative bodies in Nigeria with the National Assembly being the apex. Such laws take on the names of Decrees, Acts, Edicts, Laws, Ordinances, etc, depending on when and by whom they were made. Decrees refer to laws made by the federal government during military regimes, whereas such laws are known as Acts during civilian administrations. Edicts, on the other hand, refer to laws made by the regions/states during military regimes, whereas such laws are known as Laws during civilian administrations. However, laws made by the various local governments are collectively known as Byelaws notwithstanding the era. Ordinances refer to laws made by the Nigerian central legislature before 1st October 1954 when federalism became a constitutional phenomenon in Nigeria.
However, delegated/subsidiary legislation refers to other forms of law made by other bodies other than the competent legislative bodies in Nigeria pursuant to such enabling/parent statutes setting them up. Such laws must not be ultra vires and further, delegatus non potent delegare.
Nigerian Judicial Precedent
This refers to the ‘judge-made law’ i.e. officially documented decisions of a court usually published in law reports and which later serve as legal authorities for the determination of subsequent cases according to their rationes decidendi in line with the common law principle of stare decisis (let the decision stand).
Nigerian Customary Law
S.2(1) of the Evidence Act, 1945 provides:
‘Custom is a rule which in a particular district, has, from long usage, obtained the force of law’
In Nigeria, S.14 of the same Act and some provisions made by some High Court Laws in Nigeria direct the observance of customary law in our courts (e.g. S.44 High Court Law of Oyo State, 1978) where such rule of custom is not:
v repugnant to natural justice, equity and good conscience
v contrary to public policy
v incompatible either directly or by implication with any law for the time being in force.
So, where any rule of custom passes the above three tests, it becomes prima facie a source of Nigerian Law in that locality.
International Law
This, otherwise known as jus gentium refers to a body of legal principles governing the independent states of the world comprised of international customs, treaties, conventions, covenants, etc.
However, by the operation of the principle of dualism in Nigeria, such legal principles and or agreements become effective in our legal system only after proper ratification by our National Assembly. See S.12 of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as only ‘the constitution’).
Textbooks, Pamphlets, Law Reports, Digests and Periodicals
These secondary sources are considered in the event of paucity of information from the primary sources of law in Nigeria as discussed above. Also, the weight attached to them in the legal system depends on their authorship and subject matter which they cover. For example, Sagay on the Law of Contract and Aguda on the Law of Evidence, etc would readily be admitted by the courts in such cases.
REFERENCES
Leesi, E.M. (2002), Introduction to Nigerian Legal System, Vol. II, Ebenezer Printing Press, Port Harcourt.
Sanni, A. (2006), Introduction to Nigerian Legal Method, Obafemi Awolowo University Press Limited, Ile-Ife, Nigeria.
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