A summary of the sources of Nigerian Law, and its similarities with American Law.

A SUMMARY OF THE SOURCES OF NIGERIAN LAW

INTRODUCTION

Nigeria is a pluralized state due to its multi-cultural, ethnic and religious diversity. This has substantially influenced the nature and sources of the Nigerian legal system. Umar A. et al, Nature and Sources of Nigerian Legal System: An Exorcism of a Wrong Notion, International Journal of Business, Economics and Law, Vol. 5 Issue 4 (December 2014) at 4. Many factors have played significant role in shaping the present day Nigerian Legal System. Id. The sources of the Nigerian Legal system include the Received English law, Nigerian Constitution and Legislations, customary law and Judicial precedents. Dina Y., Akintayo J. & Ekundayo F., Guide to Nigerian Legal Information, February 2005, https://www.nyulawglobal.org/globalex/Nigeria.html.

Received English Law

Upon the colonization of Nigeria, the Nigerian experiences was immensely influenced by the British rules and custom. Chinaecherem M., Legal Sources and Provenances of The Nigerian Law, https://legalideasforum.com/legal-sources-and-provenance-of-the-nigerian-law.html. The English law consequently formed a large portion from which the Nigerian law is founded upon. Id. These laws however are categorized into ‘the Extended English Laws and the Received English Laws’. Id. The Extended English Laws includes laws that were directly enacted by the queen and by virtue of Nigeria being a colonial territory, the laws were continuously applicable and continued to exist in Nigeria even after Nigeria got her independence as of October 1, 1960. Id. The received English law is mainly made up of the common law of England, the Doctrines of Equity and the Statutes of General Application enforced in England on or before October 1, 1900. Umar A., supra at 5. Common law is the body of judicial decisions of English courts. Equity, on the other hand, were principles of law born out of the court of chancery utilizing the principle of fairness and justice. Swanegan, J. R. & Podgor, E. S., overview of U.S. law (2d ed. 2019) at 11. The Chancery Court was developed by the Judicature Act of 1873 and led to both equity and common law being administered concurrently in the same court subject however to the superiority of equity in the event of any conflict. Umar A., supra at 5. Statutes of General Application that were in force in England on or before the 1st day of January 1900 constitute the third part of English law that applies in Nigeria. Id. These are statutes that applied uniformly to the whole of England. In Young V Abina (1940) 6 WACA 180, the West African Court of Appeal held that it would still be applicable in Nigeria even if it has been repealed or amended in England after 1st January, 1900. However, in Lawal V Ejidike (1997) 2 NWLR 319, the Court of Appeal held that it will be ridiculous for Nigerian Courts to continue to apply a law of England even if that law has ceased to apply in England. Hence a Statute of General Application only applies in Nigeria only if it remains a valid and enforceable law in England on the date in question.

Constitution and Local Legislation

The Nigerian constitution is the supreme law of the land from which other local enactments flow from and received their validity. Nigeria has had a lot of constitutions over different democratic dispensations and military interventions. The current constitution is The Constitution of Federal Republic of Nigeria 1999 (as amended). Nigerian Constitution provides the framework for the administration of both the Federal Government of Nigeria as well as the states. No state may therefore adopt its own constitution. Dina Y. et al, supra. Legislation is a potent and formidable source of Nigerian law. Umar A., supra at 5. Generally, Nigerian legislation is divided into primary and secondary legislation. Id. Primary legislation refers to those laws made by a body or arm of government that is constitutionally responsible for law making. Id. For example, laws made by the National Assembly, State Houses of Assembly or Military Administration during Military era. Id. The Constitution of the Federal Republic of Nigeria 1999, as amended, regulates the distribution of legislative business between the National Assembly, which has power to make laws for the Federation and the House of Assembly for each State of the Federation. Dina Y., supra. The current legislation in force at the federal level is largely contained in the 16 volume Laws of the Federation of Nigeria 2004 (LFN). Id. Each of the 36 states and the Federal Capital Territory (FCT) Abuja has its own laws within the exclusive legislative competence of states. Id. ?Secondary Legislations are laws made by executive agencies authorized by their enabling acts to make regulations. For example, the Independent Electoral Commission.

Customary Law

Customary law in Nigeria fundamentally consists of the customs and practices used by the southern and some northern tribes and Islamic religious law that was in operation in Northern Nigeria. Custom is therefore the practices and usages of district communities which are seen as a source of obligation and contemporary legal culture. Umar A., supra at 7. Generally, customs are subjected to validity tests before it becomes applicable. Id. It must not be repugnant to natural justice, equity and good conscience or incompatible directly or by implication with any law and it must equally not be contrary to public policy. Id. The problem however is the parameter to determine whether a custom does fall contrary to any of the validity tests. Id. There is no defined rule or guideline to determine the validity of a custom. Id. The colonial administration simple introduced these tests to sideline or otherwise make inapplicable customs which they feel does not satisfy their test or are unfit to be applicable. Id. Islamic law is part of the sources of Nigerian law. Umar A., supra at 6. The 1999 Constitution recognizes Islamic law of the Maliki School of jurisprudence in respect of Islamic personal law and it established the Sharia Court of Appeal. Id. It states that there shall be a Sharia Court of Appeal for every state that requires it. Id. This goes to establish the existence of Islamic personal law under the Nigerian Constitution. Id. It is important to mention that the Constitution states that the Sharia Court of Appeal shall be for state that requires it. Id.

Judicial precedence

Nigeria operates the common law system. Umar A., supra at 6. The pronouncement by the courts over the years governing specific legal situation constitutes case laws. Id. The Supreme Court is the highest court of the land. Dina, Y., supra. The Court of Appeal (originally known as the Federal Court of Appeal) was established in 1976 as a national penultimate court to entertain appeals from the High Courts, which are the trial courts of general jurisdiction. Id. The Court of Appeal sits in Judicial Divisions in locations throughout the country; but it is still a single court and is ordinarily bound by its own decisions. Id. The Court of Appeal and all lower courts are bound by the decisions of this Supreme Court. Id. The High Courts and other courts of coordinate and subordinate jurisdiction are equally bound by the decisions of the Court of Appeal. Id. The doctrine of judicial precedents does not apply rigidly to certain courts like the customary/area courts and the Sharia courts in Nigeria. Id. In states with Customary Courts of Appeal, appeals generally go to Customary Courts of Appeal on questions of customary law and to the High Court in other cases, whereas in some states, appeals go to the Magistrates Court from the Customary Court. Id. Appeals from Area Courts may go either to the High Courts or the Sharia Court of Appeal depending on the way the courts are organized. Id. In states with or without Sharia Court of Appeal, appeals lie from Area Courts to Customary Court of Appeal on matters of customary law if there is a Customary Court of Appeal in the state. Id. I know it might be confusing.

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Comparing the sources of American Law and Nigerian Law

At first glance, it is easy to spot the similarities between the sources of the American Legal System and Nigerian Legal System. Both systems are offshoots of the English common law, and after gaining independence, created constitutions that reconstructed their respective countries into federalist democracies. In fact, the present iteration of the Nigerian Constitution drew greatly from the American legal system. This is reflected evidently in the fact that both systems have a constitution that divided the country in three vertical and horizontal branches. Both Constitutions recognized and incorporated common law into its body of laws. Both constitutions have fundamental rights enshrined in their constitutions. It is also clear to see that judicial precedence and case law form a substantive part of both legal systems as it is typical for any common law jurisdiction. Both legal systems also employ a wealth of local legislation made up of statutes, regulations and byelaws enacted by the legislature and agencies that the legislature delegates such legislative powers to.

By the foregoing, you would think the two legal system are the same, but the similarity is only in form. Looking under the hood, as they say, one would find out many differences between the two. This, I believe, is because the historical and cultural differences between both countries. A further examination of the English law applied by both countries will reveal a big difference. There is almost a more than 200 years between the English law America applies and the received English law applied in Nigeria. This is 200 years of legal developments that is absent from the American common law system. Nevertheless, America has made up for this with its own statutes and judicial pronouncements. A major example is the Adjudicature Act of 1873 that joined the courts of equity and common all into one chancery court. Chinaecherem M., supra. On the other hand, it was in 1983 that the federal government of The United States merged the courts of equity and common law into one court. Swanegan, J. R. & Podgor, E. S., supra at 13.

Another area of deviation is in the underlying principles of the Constitution. In the American legal system, the states which are sovereigns ‘each granted to the federal government specific powers which are expressed in the constitution’. Id at 16. On the other hand, the Nigerian constitution vests sovereign power on the Federal Government. Section 2(1) Constitution of the federal republic of Nigeria 1999 (as amended). This makes states mere extensions of the federal government, and not independent sovereigns like in the American system.

Finally, the most obvious difference is the accommodation of religious and customary law in the constitution and the Nigerian legal system at large. This is in complete pole opposites with the provisions of the 1st Amendment of the United States Constitution, most especially the Establishment Clause that ‘wishes to erect a wall between the state and the church’. Id at 233. Not only are these laws accommodated, but the constitution also provided for its own parallel court system to adjudicate matters arising from religious and customary law. Sections 260 – 284 Constitution of the Federal Republic of Nigeria 1999 (as amended).

Conclusion

The Nigerian legal System is pluralized in nature. Umar A., supra at 8. The colonial history and culture and religious practices of the people, although made less significant through the validity tests, exerted strong influence on Nigerian Law. id. This influence is clearly seen in our constitution and even in the enactments of the legislature. I believe it is this push and pull effect of the different historical and cultural sources of law that make our laws uniquely ours, reflecting our journey and our tradition.