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History of the Nigerian Legal System

History of the Nigerian Legal System

It is impossible for any civilized society to exist without a legal system, as the legal system ensures that
there is a procedure for the administration of justice. A legal system is necessary to maintain civilization
and obedience of laws in any society. It would be erroneous to assume that there existed no legal
system in Nigeria before the coming of the British. Each of the territories that constitute Nigeria had a
legal system long before colonization. In the period before 1862, the laws administered in most of the
areas in present northern Nigeria was the Muslim law of the Maliki school. These laws were
administered through the Alkali courts by the Alkali, knowledgeable Islamic scholars. The south had
unwritten customary law. Law is dynamic, continually changing to fit the needs of whatever society it
exists in. When the trading coastal areas like Lagos, Benin, Bonny, Brass, New Calabar(now Degema) and
Old Calabar(now Calabar) had indigenous citizens who had disputes with foreigners, the indigenous
court system was not enough to settle such disputes. The foreigners often felt like they rarely obtained
justice and so there was the need for the justice administration system to be improved. In 1849, the
British government appointed the first consul in Nigeria. The consuls were to settle trade disputes
between the indigenes and foreigners and they established equity courts and consular courts.

The British government made Lagos a colony is 1862, introducing English laws which were to be
administered by some established courts. The first supreme court was established in 1863 by the
Supreme Court Ordinance 1863. Other courts that were established were the Court of Civil and Criminal
Justice which replaced the Supreme Court and the West African Court of Appeal. A number of other
courts were established before 1874 and in 1876, the Supreme Court Ordinance 1876 established a new
supreme court which was to administer the common law of England, the doctrines of equity, and the
statutes of general application in force in 1876. The Supreme Court was made up of the Full Court which
served as a court of appeal, the Divisional Courts with both original and appellate jurisdiction, and the
District Commissioners’ Courts. Appeals from the District Commissioners’ Court went to the Divisional
Courts while the appeals from the decisions of the Divisional Courts went to the Full Court. The received
English law was in force simultaneously with the customary laws as the Full Court held in Oppon v.
Ackinie that customary law was still valid.

A number of British firms traded along the banks of River Niger and one of such was the National African
Company which received a Royal Charter in 1886 and later had its name changed to the Royal Niger
Company. The company was empowered to administer justice in the territories it operated in while
giving due regard to the indigenous laws and customs until its charter was revoked in 1899.

The territories that now constitute southern Nigeria were amalgamated by the Southern Nigeria Order
in Council 1899 which took effect on the 1st of January, 1900. The Order provided for the appointment
of a high commissioner who was empowered to make laws for the protectorate through proclamations.
The high commissioner established a Supreme Court through the Supreme Court Proclamation 1900 and
the Supreme Court was to administer the common law of England, the doctrines of equity and the
statutes of general application in force in England on 1st of January, 1900. Courts were established
through the Native Courts Proclamation 1900 to administer the customary laws which were previously
administered by the indigenous courts. In any jurisdiction where a native court had been established,
not indigenous court could be in force as the native courts exercised their jurisdiction exclusively. The
native court system has been said to have been a failure.

A High Commissioner was also established for the protectorate of Northern Nigeria who established a
Supreme Court, provincial courts and cantonment courts through the Protectorate Courts Proclamation
1900. The Native Courts were established by a separate proclamation which was the Native Courts
Proclamation 1900. It should be noted that the native court system fared better in the north than it did
in the south. While the indigenes were allowed to appoint the heads of their native courts, no such
privileges were given to the southerners.

In 1914, the colony and protectorate of southern Nigeria was amalgamated with the protectorate of
northern Nigeria to form the colony and protectorate of Nigeria. Three types of courts were established
for the country which were the Supreme Court, the Provincial courts and the native courts. The Supreme
Court was similar to the one established in both the north and south in 1900, applying the common law
of England, doctrines of equity and the statutes of general application in force in England on the 1st of
January, 1900. It had civil and criminal jurisdiction. The provincial courts had civil and criminal
jurisdiction, with appeals from its civil decisions going to the Supreme court while there was no
opportunity to appeal its decision in criminal cases. The provincial courts were widely criticized as it did
not make provision for legal representation and the courts were manned by administrative personnel
instead of judicial personnel and they could hardly be expected to deliver justice properly. While the
government claimed that it was to enable litigants get justice cheaply, there is no point in it being cheap
if justice cannot be gotten, especially since the decision of the provincial courts could not be appealed in
criminal cases.
The judicial system attracted so much criticism that in 1933, the Protectorate Courts Ordinance 1933
established a High Court and Magistrates’ courts for the protectorate. The high court had practically the
same jurisdiction as the Supreme court, except that only the Supreme Court had jurisdiction in probate,
divorce and matrimonial cases, admiralty cases and proceedings under specified Ordinances. The
decisions of the high court and supreme court could be appealed to the west African court of appeal.
The jurisdiction of the native courts was also increased.

The 1954 constitution was the first truly federal constitution, with Nigeria being a federation consisting
of three regions. A Federal Supreme Court was established. There was also a High Court for each region
and Lagos. A magistrates’ court was established for each region and appeals from the courts went to the
High Court of that region. There were also statutory courts which were known as Customary Courts in
the eastern and western region and native Courts in the northern region. The northern region had a
customary court of appeal which was known as the Moslem Court of Appeal and was to entertain
appeals from the native courts in civil and criminal cases where Moslem law was applied. The Sharia
Court of Appeal was established in 1960 to replace the Moslem Court of Appeal.

Even though Nigeria gained independence in 1960, the Privy council still remained the highest court of
the country, entertaining appeals from the Federal Supreme Court. It was in 1963 that a new difference
was introduced, with the federal supreme court abolished to establish a new court known as the
Supreme Court of Nigeria to be the highest court in the country. This Supreme Court exists till present,
headed by the Chief Justice. There are also other courts like the Court of Appeal, High Courts of states,
High Court of the federal capital territory, High Court of the federation, Sharia court of Appeal,
Customary court of Appeal, National industrial court, Magistrate courts, Customary courts, Sharia
Courts, inter alia.

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The Nigerian Legal System

The Nigerian Legal System

Whatever is called a system connotes orderliness. A system is the organized relationship between the
component parts of a structure. A legal system may be described as the interaction of laws within a legal
order. The Nigerian legal system refers to the totality of laws in Nigeria and the machinery through
which these laws are enforced. It has been said that all the laws in a legal system are based on a
fundamental norm from which they get their validity. This is referred to as the grundnorm. The
grundnorm is the fons et origo, the source of every other law and authority in the legal system. The
grundnorm in colonial Nigeria was the queen of England while the grundnorm after independence
became the constitution as it is the most basic law in the country from which all other laws gain their
validity. The 1999 constitution of the federal republic of Nigeria states in section 1(1) that it is supreme
and its provisions shall have binding force on every authority and person and it states in section 1(3)
states that any law which is inconsistent with the constitution is void to the extent of its inconsistency.

Some might wonder if every country has its own type of legal system since practically every country has
unique laws, with some societies even having more than one set of operative laws. In Nigeria, for
example, state and federal laws co-exist with English and customary laws. Despite this, there are
noticeable similarities in the legal systems of different countries which allow them to be classified as
sharing a legal system. The legal system is determined by the fundamental tenets and values which
underlie the entire body of laws and not the laws themselves. This is why even though the age of
majority is 21 in Nigeria and it is 18 in the United Kingdom, they both still practice the common law legal
system.

The major legal systems found in countries around the world are the civil law system and the common
law system. The civil law was derived from Roman law. The laws are usually codified and there is no
adoption of judicial precedents and so judgements are not binding on later decisions. This legal system
may be found in much of continental Europe, Central America, South America and several other regions.
The common law, on the other hand, is a system based on rules and doctrines developed over time by
judges and have now formed precedents that are often binding. One easily noticeable difference is that
while the courts in civil law countries do not follow judicial precedents, the common law countries have
organized hierarchy of courts to enable the practice of judicial precedence. Common law is practiced in
countries like the United States of America, the United Kingdom, etc.

Just like many other African countries which were colonized by Britain, Nigeria practices the common
law system. It has been argued by some that the pre-colonial societies had a legal system, and this may
be true. However, the current legal system being practiced in Nigeria is mostly adopted from the legal
system of England. In order to function properly and allow for the unique features of Nigeria like its
customary laws and military rulership in the past, the Nigerian legal system possesses some unique
characteristics. Some of the characteristics are as follows.

Duality: There is duality of the laws in the Nigerian legal system as the law consists of both the English
law and the customary law. The Islamic law, which is applicable in the north, is treated as customary law
even though it is not indigenous. Judges are presumed to know English laws and so they do not have to
be proved before them. On the other hand, customary laws have to be proved through evidence until
the law becomes notorious enough to be judicially noticed.

Volume of external influence: The Nigerian legal system has been greatly influenced by international
law. One easy point of reference is the Islamic law which has supplanted the customary law in a lot of
Northern communities. Furthermore, a large part of the legal system was inherited from the English
system. The Criminal Code and the Matrimonial Causes are modeled after those of Queensland in
Australia while the Penal Code, applicable in the north, is fashioned after the Sudanese Penal Code.
Foreign authorities may be cited in Nigerian courts as having persuasive influence. All of these
contribute to the extent of external influence.

Diversity: There is a diversity amongst the laws in the Nigerian legal system. Two neighbouring
communities may have different laws guiding them, and this is owing to the various and diverse ethnic
groups of the country. Each of the over 350 ethnic groups in the country have their own customary laws.
Even amongst the same ethnic group, two tribes might have different laws. The major differences in
ethnic laws are in marriage, inheritance and property ownership.

The system of precedents: The principle of stare decisis is one which is followed by the Nigerian courts,
and it provides that earlier decisions of courts should be binding on lower courts. Such decisions may
also serve as persuasive authority for courts of equal standing and superior courts. Even when lower
courts are inclined by good reason to depart from binding precedents, they are still bound to follow
them. It has been stated that judicial precedents ensure the certainty and predictability of laws.

Order of judicial hierarchy: It is necessary for the following of judicial precedents that there is an
established judicial hierarchy. The hierarchy determines which decisions are binding on which courts
and those that are persuasive. The Supreme Court is the highest court and its decisions are binding on
all courts inferior to it. Below it is the court of appeal. Below the court of appeal, on coordinate
jurisdictions, are the Federal High Court, State High Courts, High Court of the Federal Capital Territory,
Sharia Court of Appeal of the Federal Capital Territory, Sharia Court of Appeal of the states, Customary
Court of Appeal of the Federal Capital Territory and the Customary Court of Appeal of the states. There
are also the magistrates’ courts, Area courts and Customary courts.

Fusion of the legal profession: In Nigeria, legal practitioners practice as both solicitors and barristers as
opposed to what is obtainable in England where legal practitioners are either solicitors or barristers.
Nigerian legal practitioners are admitted to the bar as solicitors and advocates of the Supreme Court of
Nigeria.

Accusatorial and Adversarial system: Nigeria, as a common law country, has its courts applying an
adversarial or accusatorial system as opposed to the inquisitorial system applied by civil law countries.
The judge in an accusatorial system is to be an unbiased umpire and is never to descend into the arena.
Both parties are to present their cases and prove it without any assistance or inquisition by the judge. In
Adetoun oladeji v. Nigerian Breweries Ltd., the court took notice of a bailment issue which was not
presented by either of the parties. The supreme court reversed the decision and restated that courts
were not to help parties present issues.

Military Influence: The repeated occurrences of coups in the past has left the legal system influenced by
the military. There were decrees and edicts which were made and are still in force, applicable by the
courts.

Meaning of law

Law may mean different things to different people. Generally, a law is a rule of action. It is in this vein
that we have laws of dynamics, laws of science, etc. However, we are more concerned with law as it
relates to the legal profession. Trying to define law is like trying to define truth or morality, different
people have different meanings. People are usually more concerned about the laws as they relate to
them. While a judge may see laws as rules that regulate human behavior and apply sanctions in the
event of a default, a lawbreaker might see law as a social instrument which limits his freedom.

Many have agreed that law is an institution without which there would be the breakdown of civilized
societies. While it has been agreed that laws are necessary for society to prosper, what exactly law is has
been a source of controversy. There are various schools of thought on the meaning of law. While the
positivist school sees law as a downward flowing body of rules from the water tower of a determinate
sovereign authority, the naturalists see law as sprouting upwards from the deep recesses of society. The
different schools of thought are as follows.

The natural law school.

The natural law school offers a convenient starting point. Proponents of this school of thought are of the
belief that law has a divine or supernatural origin, and human laws have to conform to the supernatural
laws. The foremost proponents of this school of thought were early Greek philosophers like Plato and
Aristotle and Christian theologians. The Stoic philosophers posited that these natural laws can be
determined through reason possessed by every man. For example, every man should know that it is
wrong to kill or steal. This school is more concerned with law as it ought to be, and not law as it is.

The problem with this school of thought is that it equates law with morality. The standards of morality
vary amongst different people according to their values. While some people are in support of abortion
and euthanasia, some are not. It would be difficult to judge people based on their own morals.

The historical school.

This school has Von Savigny as its major proponent. The proponents of this school are of the belief that
law develops from the historical experiences of the people. Law is created from the spirit of the people
(the volksgeist) to cater for their social needs. The law sprouts from the historical experiences of the
people just like language and culture. This school of thought can be found in customary law which is a
kind of law gotten from the customs and traditions of the people. This school of thought may be traced
to the shared spirit of nationalism.

There are two problems with this school of thought. The first is that some countries are made of
different communities with different historical backgrounds, an example of this being Nigeria. In such a
situation, the law cannot still be said to be from the history of every community. Also, some countries
inherit their laws from other countries and the laws are not created from their historical experiences.
Nigerian law is largely gotten from the English common law, the doctrine of equity and English statutes
of general application. This school of thought is not always the source of law.

The positivist school.

The positivist school is a direct contradiction with the natural and historical schools of thoughts. While
the two schools see law as springing from the people, the positivist school sees laws as commands
flowing from the law makers to the people. The proponents of the positivist school are more concerned
with law as it is and not law as it ought to be. They have the belief that whether law is just and how it
ought to be is not the business of the jurist, but the business of the jurist is whether the law is legal.
Although there were other proponents of the school like Jean Bodin, Thomas Hobbes and Jeremy
Bentham, the main proponent was John Austin. John Austin had his own brand of positivism, not
necessarily shared by others, in which he believed that laws were commands from a sovereign to his
inferiors. He prescribed three major components for a law, as different from rules of morality and
instructions. The three major components are command, sovereignty and sanction. According to him,
law should be a command and not a mere request or instruction. The command must also be issued by a
sovereign who possesses sanctions to ensure compliance.

Firstly, not everyone obeys laws because of the fear of sanction. Some people might not commit murder
not because of the fear of capital punishment, but only because they think it is morally wrong. Also, not
every law is a command. Examples are inheritance laws and marriage laws which do not force anyone to
leave property to be inherited or get married, but only prescribe the methods to be followed by
whoever is interested in doing so.

The sociological or functional school.

Popular proponents of this school of thought include Radolf von Jhering and Roscoe Pound. The
members of this school are more concerned with studying the effects of laws on the societies in which
they operate. It is posited that laws should not just be seen by the jurist as norms that should be
followed, but the influence of laws and how well they achieve their objectives should also be
considered. Law is a means of ordering conflicting interests, and how well it achieves this function
should be observed, according to this school.

The realist school.

The realist school is one with a pragmatic approach which grew after the first world war. The main
proponent of this school is Justice Oliver Wendell Holmes. The proponents of this school of thought are
more concerned about law in action and not what it states in statute books. This school of thought sees
judges as law makers since they are in charge of interpreting the law. It has been stated that the bad
man does not care about what the law says after he commits a crime, but what the courts would do. By
interpreting the law, this school of thought posits that judges are actually law makers. This school of
thought has been criticized, as judges are to interpret laws and not to make laws.

Law, Morality and Customs

Law and morality may seem very similar, with some even seeing them as one and the same. The reason
for this perhaps lies in the fact that they both try to order society and often look the same. The moral
prescription against killing seems similar to the law against murder. However, the two are still different.

The immorality of an action would not always make that action unlawful. While adultery is considered
immoral in the southern states of Nigeria, it is not unlawful. Laws are not always made in tandem with
the level of morality in a society. A person may not be lawfully compelled to come to the aid of his
neighbor even though the dictates of morality require him to do so. Just as some moral requirements
are not taken notice of by law, some laws have nothing to do with morality. An example is the law on
traffic which has nothing to do with a person’s morality.

One easy way to differentiate between morality and law is that while going against moral obligations
only attracts social opprobrium, going against the law attracts sanctions. Inasmuch as law is different
from morality, a lot of laws are made in line with what is morally right. An example is the criminalization
of rape. In the opinion of Lord Devlin, the suppression of vice is as much the law’s business as the
repression of subversive activities.

Customs, like laws, also have normative values and command obedience from members of the society.
In spite of their similarities, they are easily distinguishable from laws. While laws possess sanctions,
customs are not legally binding unless they are given the force of law.

Classification of law

It should be noted that while law is being classified, it is impossible to classify them into watertight
compartments as they often overlap. The major classifications are as follows.

Private law and public law.

Civil law and criminal law.

Civil law and common law.

Municipal law and international law.

Substantive law and adjectival law.

Customary law and non-customary law.

Private law and public law: Private law is the law which regulates the conduct of persons in their
interpersonal dealings, conferring rights and obligations. It includes areas of the law like property law,
law of contract, tort, equity and trust, etc. Public law has to do with law primarily concerned with the
smooth running of the machinery of the state and it caters for situations in which the smooth running of
the state or the state’s interests are threatened. Public law includes constitutional law, administrative
law, criminal law, revenue law, etc. As stated earlier, these classifications are not watertight and may
overlap. An example is a case where A steals B’s car. It may fall under public law as a crime of stealing, or
under private law as the tort of conversion.

Civil law and criminal law: Civil law is mainly concerned with private rights and obligations. Such actions
are often initiated by private persons, although in appropriate cases the government may also initiate or
defend such actions as juristic persons. Whoever commences a civil action is usually referred to as a
plaintiff, or a petitioner in divorce, election and winding up processes where the action is commenced by
petition, while the adverse party is known as the defendant, or respondent, as the case may be. The
purpose of a civil action is usually for the plaintiff to get compensated either through damages or
injunctions. Criminal law, on the other hand, is the law that has to do with crime. Actions are usually
commenced by the state to punish wrongdoers either through imprisonment or the payment of fines.
Crimes may either be minor offences, if the punishment is imprisonment less than six months,
misdemeanors if it attracts imprisonment up to six months but less than three years, and it is a felony if
the commission of the crime attracts three years of imprisonment without proof of previous conviction.
Private persons may arrest anyone whom they reasonably suspect to have committed a felony, while a
private person may only arrest someone they reasonably suspect of committing a minor offence or
misdemeanor at night. The former position according to the rule in Smith v. Selwyn was that a person
must first be tried completely for the criminal aspect of a case before a civil action could be brought if
there were both civil and criminal elements in the case. The rule has now been abolished and both
actions may be brought simultaneously or the civil action may be brought first. If A slaps B, it would
constitute the tort of battery which is civil law while also constituting the crime of assault.

Civil law and common law: Civil law in this sense refers to the system which developed from Rome. It is a
system in which the laws are codified and the judiciary practices an inquisitorial system where they are
allowed to descend into the arena and inquire into the facts of a case. Common law, on the other than,
refers to the system which was developed from the English system. There is great emphasis on judicial
precedents and the judges are not expected to descend into the arena and are instead to be unbiased
umpires.

Municipal law and international law: Municipal law is the law which operates within a nation. Laws
made by countries are limited by the territorial limits of the countries. An example of this is the Nigerian
Criminal Code which is only applicable in Nigeria and not outside Nigeria. On the other hand,
international law refers to the law which regulates the relationships between states. These laws are
usually made up of international customs, treaties, bilateral agreements and conventions.

Substantive law and adjectival law: Substantive law refers to the rules of law and legal principles that
define the extent of legal rights and obligations in different areas of law. Questions as to the validity of a
contract, the elements of an offence in criminal law, etc., all have to do with substantive law. It includes
constitutional law, administrative law, law of contract, criminal law, law of tort, etc. Procedural law,
which is also referred to as adjectival law, involves the rules through which an action may be brought
and disposed with. This includes the law of evidence.

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The Nigerian Legal System

The Nigerian Legal System

Whatever is called a system connotes orderliness. A system is the organized relationship between the
component parts of a structure. A legal system may be described as the interaction of laws within a legal
order. The Nigerian legal system refers to the totality of laws in Nigeria and the machinery through
which these laws are enforced. It has been said that all the laws in a legal system are based on a
fundamental norm from which they get their validity. This is referred to as the grundnorm. The
grundnorm is the fons et origo, the source of every other law and authority in the legal system. The
grundnorm in colonial Nigeria was the queen of England while the grundnorm after independence
became the constitution as it is the most basic law in the country from which all other laws gain their
validity. The 1999 constitution of the federal republic of Nigeria states in section 1(1) that it is supreme
and its provisions shall have binding force on every authority and person and it states in section 1(3)
states that any law which is inconsistent with the constitution is void to the extent of its inconsistency.

Some might wonder if every country has its own type of legal system since practically every country has
unique laws, with some societies even having more than one set of operative laws. In Nigeria, for
example, state and federal laws co-exist with English and customary laws. Despite this, there are
noticeable similarities in the legal systems of different countries which allow them to be classified as
sharing a legal system. The legal system is determined by the fundamental tenets and values which
underlie the entire body of laws and not the laws themselves. This is why even though the age of
majority is 21 in Nigeria and it is 18 in the United Kingdom, they both still practice the common law legal
system.

The major legal systems found in countries around the world are the civil law system and the common
law system. The civil law was derived from Roman law. The laws are usually codified and there is no
adoption of judicial precedents and so judgements are not binding on later decisions. This legal system
may be found in much of continental Europe, Central America, South America and several other regions.
The common law, on the other hand, is a system based on rules and doctrines developed over time by
judges and have now formed precedents that are often binding. One easily noticeable difference is that
while the courts in civil law countries do not follow judicial precedents, the common law countries have
organized hierarchy of courts to enable the practice of judicial precedence. Common law is practiced in
countries like the United States of America, the United Kingdom, etc.

Just like many other African countries which were colonized by Britain, Nigeria practices the common
law system. It has been argued by some that the pre-colonial societies had a legal system, and this may
be true. However, the current legal system being practiced in Nigeria is mostly adopted from the legal
system of England. In order to function properly and allow for the unique features of Nigeria like its
customary laws and military rulership in the past, the Nigerian legal system possesses some unique
characteristics. Some of the characteristics are as follows.

Duality: There is duality of the laws in the Nigerian legal system as the law consists of both the English
law and the customary law. The Islamic law, which is applicable in the north, is treated as customary law
even though it is not indigenous. Judges are presumed to know English laws and so they do not have to
be proved before them. On the other hand, customary laws have to be proved through evidence until
the law becomes notorious enough to be judicially noticed.

Volume of external influence: The Nigerian legal system has been greatly influenced by international
law. One easy point of reference is the Islamic law which has supplanted the customary law in a lot of
Northern communities. Furthermore, a large part of the legal system was inherited from the English
system. The Criminal Code and the Matrimonial Causes are modeled after those of Queensland in
Australia while the Penal Code, applicable in the north, is fashioned after the Sudanese Penal Code.
Foreign authorities may be cited in Nigerian courts as having persuasive influence. All of these
contribute to the extent of external influence.
Diversity: There is a diversity amongst the laws in the Nigerian legal system. Two neighbouring
communities may have different laws guiding them, and this is owing to the various and diverse ethnic
groups of the country. Each of the over 350 ethnic groups in the country have their own customary laws.
Even amongst the same ethnic group, two tribes might have different laws. The major differences in
ethnic laws are in marriage, inheritance and property ownership.

The system of precedents: The principle of stare decisis is one which is followed by the Nigerian courts,
and it provides that earlier decisions of courts should be binding on lower courts. Such decisions may
also serve as persuasive authority for courts of equal standing and superior courts. Even when lower
courts are inclined by good reason to depart from binding precedents, they are still bound to follow
them. It has been stated that judicial precedents ensure the certainty and predictability of laws.

Order of judicial hierarchy: It is necessary for the following of judicial precedents that there is an
established judicial hierarchy. The hierarchy determines which decisions are binding on which courts
and those that are persuasive. The Supreme Court is the highest court and its decisions are binding on
all courts inferior to it. Below it is the court of appeal. Below the court of appeal, on coordinate
jurisdictions, are the Federal High Court, State High Courts, High Court of the Federal Capital Territory,
Sharia Court of Appeal of the Federal Capital Territory, Sharia Court of Appeal of the states, Customary
Court of Appeal of the Federal Capital Territory and the Customary Court of Appeal of the states. There
are also the magistrates’ courts, Area courts and Customary courts.

Fusion of the legal profession: In Nigeria, legal practitioners practice as both solicitors and barristers as
opposed to what is obtainable in England where legal practitioners are either solicitors or barristers.
Nigerian legal practitioners are admitted to the bar as solicitors and advocates of the Supreme Court of
Nigeria.

Accusatorial and Adversarial system: Nigeria, as a common law country, has its courts applying an
adversarial or accusatorial system as opposed to the inquisitorial system applied by civil law countries.
The judge in an accusatorial system is to be an unbiased umpire and is never to descend into the arena.
Both parties are to present their cases and prove it without any assistance or inquisition by the judge. In
Adetoun oladeji v. Nigerian Breweries Ltd., the court took notice of a bailment issue which was not
presented by either of the parties. The supreme court reversed the decision and restated that courts
were not to help parties present issues.
Military Influence: The repeated occurrences of coups in the past has left the legal system influenced by
the military. There were decrees and edicts which were made and are still in force, applicable by the
courts.

Meaning of law

Law may mean different things to different people. Generally, a law is a rule of action. It is in this vein
that we have laws of dynamics, laws of science, etc. However, we are more concerned with law as it
relates to the legal profession. Trying to define law is like trying to define truth or morality, different
people have different meanings. People are usually more concerned about the laws as they relate to
them. While a judge may see laws as rules that regulate human behavior and apply sanctions in the
event of a default, a lawbreaker might see law as a social instrument which limits his freedom.

Many have agreed that law is an institution without which there would be the breakdown of civilized
societies. While it has been agreed that laws are necessary for society to prosper, what exactly law is has
been a source of controversy. There are various schools of thought on the meaning of law. While the
positivist school sees law as a downward flowing body of rules from the water tower of a determinate
sovereign authority, the naturalists see law as sprouting upwards from the deep recesses of society. The
different schools of thought are as follows.

The natural law school.

The natural law school offers a convenient starting point. Proponents of this school of thought are of the
belief that law has a divine or supernatural origin, and human laws have to conform to the supernatural
laws. The foremost proponents of this school of thought were early Greek philosophers like Plato and
Aristotle and Christian theologians. The Stoic philosophers posited that these natural laws can be
determined through reason possessed by every man. For example, every man should know that it is
wrong to kill or steal. This school is more concerned with law as it ought to be, and not law as it is.

The problem with this school of thought is that it equates law with morality. The standards of morality
vary amongst different people according to their values. While some people are in support of abortion
and euthanasia, some are not. It would be difficult to judge people based on their own morals.

The historical school.

This school has Von Savigny as its major proponent. The proponents of this school are of the belief that
law develops from the historical experiences of the people. Law is created from the spirit of the people
(the volksgeist) to cater for their social needs. The law sprouts from the historical experiences of the
people just like language and culture. This school of thought can be found in customary law which is a
kind of law gotten from the customs and traditions of the people. This school of thought may be traced
to the shared spirit of nationalism.

There are two problems with this school of thought. The first is that some countries are made of
different communities with different historical backgrounds, an example of this being Nigeria. In such a
situation, the law cannot still be said to be from the history of every community. Also, some countries
inherit their laws from other countries and the laws are not created from their historical experiences.
Nigerian law is largely gotten from the English common law, the doctrine of equity and English statutes
of general application. This school of thought is not always the source of law.

The positivist school.

The positivist school is a direct contradiction with the natural and historical schools of thoughts. While
the two schools see law as springing from the people, the positivist school sees laws as commands
flowing from the law makers to the people. The proponents of the positivist school are more concerned
with law as it is and not law as it ought to be. They have the belief that whether law is just and how it
ought to be is not the business of the jurist, but the business of the jurist is whether the law is legal.
Although there were other proponents of the school like Jean Bodin, Thomas Hobbes and Jeremy
Bentham, the main proponent was John Austin. John Austin had his own brand of positivism, not
necessarily shared by others, in which he believed that laws were commands from a sovereign to his
inferiors. He prescribed three major components for a law, as different from rules of morality and
instructions. The three major components are command, sovereignty and sanction. According to him,
law should be a command and not a mere request or instruction. The command must also be issued by a
sovereign who possesses sanctions to ensure compliance.

Firstly, not everyone obeys laws because of the fear of sanction. Some people might not commit murder
not because of the fear of capital punishment, but only because they think it is morally wrong. Also, not
every law is a command. Examples are inheritance laws and marriage laws which do not force anyone to
leave property to be inherited or get married, but only prescribe the methods to be followed by
whoever is interested in doing so.
The sociological or functional school.

Popular proponents of this school of thought include Radolf von Jhering and Roscoe Pound. The
members of this school are more concerned with studying the effects of laws on the societies in which
they operate. It is posited that laws should not just be seen by the jurist as norms that should be
followed, but the influence of laws and how well they achieve their objectives should also be
considered. Law is a means of ordering conflicting interests, and how well it achieves this function
should be observed, according to this school.

The realist school.

The realist school is one with a pragmatic approach which grew after the first world war. The main
proponent of this school is Justice Oliver Wendell Holmes. The proponents of this school of thought are
more concerned about law in action and not what it states in statute books. This school of thought sees
judges as law makers since they are in charge of interpreting the law. It has been stated that the bad
man does not care about what the law says after he commits a crime, but what the courts would do. By
interpreting the law, this school of thought posits that judges are actually law makers. This school of
thought has been criticized, as judges are to interpret laws and not to make laws.

Law, Morality and Customs

Law and morality may seem very similar, with some even seeing them as one and the same. The reason
for this perhaps lies in the fact that they both try to order society and often look the same. The moral
prescription against killing seems similar to the law against murder. However, the two are still different.

The immorality of an action would not always make that action unlawful. While adultery is considered
immoral in the southern states of Nigeria, it is not unlawful. Laws are not always made in tandem with
the level of morality in a society. A person may not be lawfully compelled to come to the aid of his
neighbor even though the dictates of morality require him to do so. Just as some moral requirements
are not taken notice of by law, some laws have nothing to do with morality. An example is the law on
traffic which has nothing to do with a person’s morality.
One easy way to differentiate between morality and law is that while going against moral obligations
only attracts social opprobrium, going against the law attracts sanctions. Inasmuch as law is different
from morality, a lot of laws are made in line with what is morally right. An example is the criminalization
of rape. In the opinion of Lord Devlin, the suppression of vice is as much the law’s business as the
repression of subversive activities.

Customs, like laws, also have normative values and command obedience from members of the society.
In spite of their similarities, they are easily distinguishable from laws. While laws possess sanctions,
customs are not legally binding unless they are given the force of law.

Classification of law

It should be noted that while law is being classified, it is impossible to classify them into watertight
compartments as they often overlap. The major classifications are as follows.

Private law and public law.

Civil law and criminal law.

Civil law and common law.

Municipal law and international law.

Substantive law and adjectival law.

Customary law and non-customary law.

Private law and public law: Private law is the law which regulates the conduct of persons in their
interpersonal dealings, conferring rights and obligations. It includes areas of the law like property law,
law of contract, tort, equity and trust, etc. Public law has to do with law primarily concerned with the
smooth running of the machinery of the state and it caters for situations in which the smooth running of
the state or the state’s interests are threatened. Public law includes constitutional law, administrative
law, criminal law, revenue law, etc. As stated earlier, these classifications are not watertight and may
overlap. An example is a case where A steals B’s car. It may fall under public law as a crime of stealing, or
under private law as the tort of conversion.

Civil law and criminal law: Civil law is mainly concerned with private rights and obligations. Such actions
are often initiated by private persons, although in appropriate cases the government may also initiate or
defend such actions as juristic persons. Whoever commences a civil action is usually referred to as a
plaintiff, or a petitioner in divorce, election and winding up processes where the action is commenced by
petition, while the adverse party is known as the defendant, or respondent, as the case may be. The
purpose of a civil action is usually for the plaintiff to get compensated either through damages or
injunctions. Criminal law, on the other hand, is the law that has to do with crime. Actions are usually
commenced by the state to punish wrongdoers either through imprisonment or the payment of fines.
Crimes may either be minor offences, if the punishment is imprisonment less than six months,
misdemeanors if it attracts imprisonment up to six months but less than three years, and it is a felony if
the commission of the crime attracts three years of imprisonment without proof of previous conviction.
Private persons may arrest anyone whom they reasonably suspect to have committed a felony, while a
private person may only arrest someone they reasonably suspect of committing a minor offence or
misdemeanor at night. The former position according to the rule in Smith v. Selwyn was that a person
must first be tried completely for the criminal aspect of a case before a civil action could be brought if
there were both civil and criminal elements in the case. The rule has now been abolished and both
actions may be brought simultaneously or the civil action may be brought first. If A slaps B, it would
constitute the tort of battery which is civil law while also constituting the crime of assault.

Civil law and common law: Civil law in this sense refers to the system which developed from Rome. It is a
system in which the laws are codified and the judiciary practices an inquisitorial system where they are
allowed to descend into the arena and inquire into the facts of a case. Common law, on the other than,
refers to the system which was developed from the English system. There is great emphasis on judicial
precedents and the judges are not expected to descend into the arena and are instead to be unbiased
umpires.

Municipal law and international law: Municipal law is the law which operates within a nation. Laws
made by countries are limited by the territorial limits of the countries. An example of this is the Nigerian
Criminal Code which is only applicable in Nigeria and not outside Nigeria. On the other hand,
international law refers to the law which regulates the relationships between states. These laws are
usually made up of international customs, treaties, bilateral agreements and conventions.

Substantive law and adjectival law: Substantive law refers to the rules of law and legal principles that
define the extent of legal rights and obligations in different areas of law. Questions as to the validity of a
contract, the elements of an offence in criminal law, etc., all have to do with substantive law. It includes
constitutional law, administrative law, law of contract, criminal law, law of tort, etc. Procedural law,
which is also referred to as adjectival law, involves the rules through which an action may be brought
and disposed with. This includes the law of evidence.
Customary law and non-customary law: Customary law refers to the indigenous laws of the people,
although Islamic law is also taken to be customary law even though it is not indigenous. Customary laws
have to be proved before they can be admissible, and they must not be against public policy, in
contradiction with written law, or repugnant to natural justice, equity and good conscience. Non-
customary law refers to every law which is not customary law. This includes English law, local legislation
and case law. Local legislation has prominence over every other law.

Sources of Nigerian law.

The source of anything refers to where it is gotten from. The expression “sources of Nigerian law” is
capable of several meanings, depending on the context in which it is used. It may refer to the formal
source, the material source, the historical source and the legal source. The formal source of law is the
very foundation of the entire legal order, the ultimate fountain from which a particular rule derives its
binding authority as law. An example of this is the Nigerian constitution which is the grundnorm. The
material source refers to the written text in which it can be gotten. This may come in the form of statute
books, law reports, etc. The historical source refers to the historical situation which led to the creation
of laws. The legal sources are the accepted processes through which rules are validated as having the
binding force of law. The main concentration for the purpose of study would be placed in the legal
sources and they are as follows.

Local statutes, including the constitution.

Case law.

English law; comprising extended English law which are Acts or Orders-in-council applying to Nigeria and
received English law which is made up of statutes of general application, the common law, and doctrines
of equity.

Customary law.