LAW 111 — LEGAL METHODS I

COURSE OUTLINE: FIRST SEMESTER 2023/2024

TOPIC 1
THE PHILOSOPHY OF LAW
Meaning of Law:
 Definition of law
 Schools of thought
Nature of Law
Functions of Law
Classification of Law
 Common Law and Equity
 Civil and Criminal Law
 Public Law and Private Law
 Procedural and Substantive Law
 Written and Unwritten Law
TOPIC 2
LAW AND OTHER RELATED CONCEPTS
 Law and Convention
 Law and Habit
 Law and Justice
 Law and Freedom/Liberty
 Law and Morality
 Law and Custom
APPLICABILITY OF CUSTOMARY LAW IN NIGERIA
ISLAMIC LAW viz-a-viz CUSTOMARY LAW
TOPIC 3
CONSTITUTIONAL CONTEXT OF LEGAL METHODS
 Supremacy of the Constitution
 Rule of Law
 Separation of Powers
TOPIC 4
METHODS OF SOCIAL CONTROL THROUGH LAW
 Penal Method
 Grievance Remedial Method
 Private Arranging Method
 Constitutive Method
 Fiscal Method
 Administrative Regulatory Method
 Conferral of Social Benefit Method
TOPIC 5
METHODS OF DISPUTE RESOLUTION
 Adjudicatory Method
 Non-adjudicatory Method:
ADR – Alternative Dispute Resolution
 Adversarial Method
 Inquisitorial Method
 ODR – Online Dispute Resolution
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 TOPIC ONE

THE PHILOSOPHY OF LAW

MEANING, NATURE, FUNCTIONS AND CLASSIFICATION OF LAW

A. MEANING OF LAW

It is popularly stated that: ‘different strokes for different folks.’ Put in another way, ‘beauty lies in
the eyes of the beholder.’ This applies to the definition of law. An acceptable definition of law has
defied the ages. This should not be seen as a deficiency; it rather reflects the diversities in human
thoughts and experience. Thus, ‘one man’s food is another man’s poison.’ When it comes to
defining law, so many variables come to play. As we will see, each of these variables is time
tested and empirical.

Having said that and arising from several authorities in the legal sphere, law generally speaking
means:

a. A rule.
b. A rule of behaviour or code of conduct.
c. The rules and regulations of a particular country.
d. The rules usually made by the legislative arm of government which guides and regulates
the affairs and conduct of persons, organizations, institutions (government and non-
governmental). The Legislature can also delegate legislation.
e. The whole system of rules of a country without which there would be a state of
lawlessness sociologically known as anomie.

Despite several well-intentioned definitions of law, there is no authoritative and universally

acceptable definition of law. This is because authors, jurists, philosophers and commentators see
law from different perspectives and through different lenses.

Below are some of such definitions:

- Law is: “what officials do about disputes in the law.” Karl N. Llewellyn.
- Law is: “The whole reservoir of rules on which judges draw their decisions.” Herman Max
Gluckman.
- “It is the rule of action which is prescribed by some superior and which the inferior is bound
to obey.”Sir William Blackstone.
- “The collective term for the rules of conduct for living in a legal order.” Wortley.
- Professor Salmon J.W “The body of principles recognized and applied by the state in the
administration of justice.”

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LEGAL THEORY/ SCHOOLS OF LEGAL THOUGHT

Owing to the fact that there is no universally agreed definition of law, several schools of legal
thought or jurisprudential schools have emerged seeking to define law. We will consider six of
these schools, as well as the propositions and proponents of each of the schools, the modern
influences/relevance of these schools and their criticisms.

1. NATURAL LAW SCHOOL

It is the earliest and oldest school of legal jurisprudence. This school of legal thought believes that
law originates from a Supreme Being (God). This school was deeply influenced by early Christian
philosophers. Later, the Greeks, Sophists and the Romans introduced moral and ethical
dimensions to the discussion on law.

Propositions

The natural law school believes:

1. That God Almighty is the creator of heaven and earth and so He is the ultimate
ruler of all creations. In this regard all laws are derived from God.
2. That God’s laws are divine, eternal, moral, fair and cannot be changed.
3. That every thinking person could observe and see God’s Law.
4. That the laws of God are a pattern and example to man; showing man the good
qualities which God desires of man.
5. That man-made law is contrary to God’s law.

Proponents

1. Aristotle.
2. Zeno.
3. Marcus Tullius Cicero.
4. St. Augustine of Hippo.
5. St. Thomas Aquinas.
6. Justinian.

Modern Influences/Relevance

The natural law school has influenced the law in the following ways:

1. In the law of contract, parties are meant to honour their agreements just the way
God keeps His promises.
2. In the law of tort, the “Neighbour principle” as stated by Lord Atkin in Donoghue V.
Stevenson (1932) AC 512 was derived from the teaching of Jesus Christ in Luke 10:
30-37.
3. The Criminal Code Act (Southern states) and the Penal Code Act (Northern states).

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 4. The Economic and Financial Crime Act cap. E1, Laws Federation of Nigeria (LFN)
2004.
5. Fundamental Human Rights enshrined in Chapter IV of the Constitution of the
Federal Republic of Nigeria, 1999 (as amended); see especially sections 33 – 46.

Criticisms

1. The natural law school’s use of God’s law to evaluate man made laws is not a
logical analysis. This is because faith and facts are asymmetrical.
2. The natural law school places emphasis on “what ought to be”and not “what is.”
3. The natural law school believes in equity and fairness and in exercising one’s
conscience. However, man’s conscience can be tainted.
4. Their views are idealistic and subjective.

2. POSITIVIST SCHOOL OF LAW

This school of law is further divided into two:

 The command theory of law:

This theory posits that law is the command of the sovereign handed down to the inferior
to obey. Without obedience, sanctions follow.
 The pure law theory:
They see law standing apart from any other concept or discipline. They hold that law
should not be mixed with any other concept but stand as an independent normative
system.

Propositions

They believe that law is made by a sovereign agent or a superior agent. This superior
agent is itself a creation of law e.g. the parliament or House of Assembly. They hold that law is
made and not perceived in this sense of morality and religion.

Proponents

i. Command theory of law.

John Austin is considered as the father of the positivist school of law. His popular statement is
“Law is commandment made by a superior to be obeyed by an inferior.” He also credited to have
stated that, “People have a duty and obligation to obey the law or else sanctions follow.”

ii. Pure law theory

Hans Kelsen is considered the father of the pure theory of law. He stated that “Law is a norm
that tells us what to do and what not to do”. He sees law as a standard code of behaviour.

Modern Influences/Relevance
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 1. Laws are not static but dynamic. They can be amended to suit current realities.
2. This school created the concept of law a making body.
3. This school of thought considers law as it is and not as it ought to be. They are not
interested in conjectures or speculations.

Criticisms

1. A law making body may make unjust, selfish, partisan and draconian laws which remain
in force.
2. This school of law also states that sanctions accompany non-observance of laws. However
not all laws attract sanctions for non-observance.
3. This school of law also supports the reign of dictators and despots as they see law as a
command of a superior.

3. SOCIOLOGICAL SCHOOL OF THOUGHT

Propositions

The sociological school considers law in the following terms:

1. That every society has norms, values, ways of life and acceptable conduct and these
are sources of law.
2. Law is a set of norms and values which are acceptable and which regulate any
given society.
3. Societal norms dominate and regulate the life of any society even though such
norms are not formal enactments.
4. Social norms, ethical values or living laws are not static.
5. The parliament is expected to know the normative values and way of life of the
society in order for it to make laws that reflect the wishes of the society and meets
the expectation of the society.

Proponents

1. Eugen Ehrlich (considered the father of this school)

2. Auguste Comte
3. Emile Durkheim
4. Max Weber
5. Roscoe Pound (October 27, 1870-June 30, 1964). He was an American legal scholar
and educator. He was Dean of Harvard Law School from 1916-1936).

Modern Influences/Relevance

a. The Federal Character Commission Act cap. F7, LFN 2004

b. Customary Land Tenure System.
c. The Marriage Act, cap.M6 LFN 2004.

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 d. Same Sex Marriage (Prohibition) Act 2013.
e. National Drug Law Enforcement Agency Act, cap. N30 LFN 2004.

Criticisms

1. It is difficult if not impossible to ascertain what societal values are due to pluralistic views
and values.
2. There is no ascertained institution that formulates societal values.
3. Not all laws reflect the norms and values of the society. Some laws are self-serving and
elitist e.g. the Life Pension Laws of some states in Nigeria for governors and deputy-
governors.
4. Values and norms are a matter of morality which is relative according to societies.

4. THE HISTORICAL SCHOOL OF THOUGHT

Propositions

1. The historical school of thought states that law is a product of the evolution of a people within
a period of time.
2. They hold that laws should be made in consideration of the past rather than concentrating
only on the present or the future.
3. That history timelines should be the major basis for law making.

Proponents

a. Fredrick Karl von Savigny.

b. Sir Henry J.S Maine.

Modern Influences/Relevance

1. The Constitution of the Federal Republic of Nigeria, 1999 (as amended).

2. The Penal Code Law (adapted from the Penal Code Law of Pakistan and Sudan for Northern
Nigeria)
3. The EFCC Act was based on the national disgrace associated with corruption.
4. Trafficking in Persons (Prohibition) Law Enforcement & Administration Act, 2003.

Criticisms

1. It emphasizes the past rather than the future. It does not promote legal activism.
2. It leads to repetition of mistakes.
3. It emphasizes history rather than building institutions.

5. THE REALIST SCHOOL OF THOUGHT

Propositions

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1. They assert that law is what the court interprets it to be.
2. They hold that the statutes only become sources of law when a judge pronounces on them.
3. That the way of life, the upbringing, education, preference and social training of a judge
determine his interpretations of the law and influence his decisions.
4. That a judge always has a choice between alternatives when it relates to words, their
meanings and application.
5. The role of the judge goes from deductive reasoning to discretion and inductive reasoning

Proponents

1. Oliver Wendell
2. Karl N. Llewellyn

Modern Influences/Relevance

1. Judicial precedent. Earlier decisions are used for subsequent one based on the same set of
facts.
2. Independence of the judiciary. The role of the judiciary is elevated.
3. Laws must be pronounced upon or interpreted by judges to be enforced or applied.

Criticisms

1. It focuses undue attention or emphasis on the judges and the judiciary.

2. Judicial precedent if followed sheepishly leads to repetition of mistakes made in previous
cases.
3. Judicial precedent hampers the development of the law.
4. The discretionary powers of a judge may be abused or misapplied.

6. THE MARXIAN SCHOOL OF LAW

Proposition

1. They see law as an instrument in the hands of the bourgeoisie to oppress the proletariat.
2. They state that law is created by a dictator to further the cause of the ruling masses.
3. They see law as an illegal tool of oppression and subjugation.
4. They believe that law should not be obeyed except in communist states.

Proponents

1. Karl Max.
2. Frederick Engels.

Modern Influences/Relevance

1. Fundamental human rights due to class struggle.

2. The Federal Character Commission Act.

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3. The Niger-Delta Development Commission Act.
4. Creation of states and local government.

Criticisms

1. Their thoughts promote chaos through a state of lawlessness.

2. It is antagonistic to the perceived status quo but gives no alternatives to disobeying the law.
3. It focuses on class struggle and does not take into cognizance other social factors like religion,
history, economics, politics, education, etc.

NOTE:

1. No school of legal thought or philosophy is complete in itself.

2. They all represent certain idiosyncrasies and thought patterns.
3. They do not sufficiently define or describe law in a functional manner.
4. They all have shortcomings and inadequacies.
5. A balanced view of the definition or description of law will ultimately contain ingredients
from each school of law.

B. NATURE OF LAW

By nature of law, we mean the innate or intrinsic characteristics of law. They can be summarized
thus:

Law is Normative

Law reflects the norms and values of a given people at a particular point in time. Though law
differs from morality, it is usually persuaded by mores and values. It is the acceptable norms of
society that essentially make up any law.

Law is prescriptive

Law prescribes acts, behaviour, conducts which are legal or illegal. It also provides for
punishment or sanctions where it is applicable.

Law is dynamic

Law changes with society or times. Therefore, laws can be amended to suit prevailing situations.

Law is territorial in nature

Law regulates the conducts of persons within a particular geographical location. For instance, the
laws in Kaduna State do not apply in Anambra State and vice versa.

Law is made by a recognized authority

In Nigeria, the National Assembly and State House of Assembly are empowered by section 4 of
the 1999 Constitution of the Federal Republic of Nigeria (as amended) to make laws according to
their legislative competence.
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The National Assembly makes laws about matters in the Exclusive Legislative List while a State
House of Assembly makes law from the Concurrent Legislative List.

C. FUNCTIONS OF LAW
1. Law as a code of conduct achieves order in the society. Law regulates the conduct of
persons and institutions in the society.
2. Law specifies the structure, pattern, frame work and order for all aspects of life.
3. Law prohibits self-help and jungle justice by vesting in the courts the power to hear and
determine cases.
4. Law is a means for the resolution of disputes in the society. Law guarantees how disputes
are resolved in a manner which promotes peace.
5. Law guarantees rights, freedoms and creates duties for individuals and organizations.
6. Law ensures order and peace in a society because without it, life would be short nasty and
brutish as stated by Thomas Hobbes.
7. Law is an instrument of political, economic and social change and stability. Law can be
used to restructure, change or improve existing orders and systems in the society. See
section 1(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
8. Law is used to establish law enforcement agencies, institutions, justice administration
system, which in turn enhances the functioning of law.
9. Law grants remedies and justice for those who are aggrieved.
10. The law is a means of achieving stability and equilibrium in the society as it creates
offences, wrongs and punishments or sanctions.

D. CLASSIFICATION OF LAW

Common law and equity

Common law is the set of laws introduced into England in 1066 by the Normans. Before then, the
English did not have a unified system of laws. The Normans codified and developed a system of
laws that become enforceable in England.

Equity on the other hand emerged from the Chancery Division of the King’s/Queens’s Court.
K.B means King’s Bench; Q.B means Queen’s Bench and Ch.d means Chancery Division. Equity
emerged as a ‘child of necessity.’ In the course of time, the common law worked hardship to
litigants due to its rigidity. This created dissatisfaction and led to petitions before the King or the
Queen for a review of judgments from the Common Law courts. The King or the Queen referred
such petitions to the Chancery Division headed by a Lord Chancellor who was a priest. The
priest was referred to as “the keeper of the King’s conscience.” He applied natural justice,
common sense, religious injunctions and good conscience. This led to the development of the
doctrines of equity or the maxims of equity. With time, litigants first approached the equity
courts instead of the Common Law courts.

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There was now conflict between Common Law and Equity in terms of application. This was the
issue raised in the Earl of Oxford’s case (1615) 1 Rep Ch.1. In the latter case, the British Crown or
Monarch, granted Merton College, Oxford, England, a lease of Covent Garden for 72 years at a
rent of £9 a year. About 50 years later, the College sold the lease to the Earl for £15 a year. Later
on, the College retook possession of a part of the garden on the ground that a statute of Queen
Elizabeth I prohibits the sale of ecclesiastical and college lands and that the conveyance to the
Earl was void. The Earl sued to eject the College from the land. The common law judge found in
favour of the college, on the ground that the statute was binding on the parties. The Earl filed an
action in Equity in the Court of Chancery for relief and Lord Ellesmere granted it, on the ground
that the claim of the college was against all good conscience, this brought common law and
equity head-to-head and King James I intervened and ruled in favour of Equity and held that
whenever there was a conflict between Common Law and Equity, the latter would prevail. This
was a royal fiat without the backing of any law.

However, by the Judicature Acts 1873-1875, the Court of Chancery and the Common Law courts
were required to administer common law and the principles of equity concurrently. Most
importantly, sections 36-44 of the Judicature Acts of 1873-1875 provided that whenever there was
a conflict between Common Law and Equity, Equity would prevail. In Nigeria and particularly
by section 15 of the National Industrial Court Act, 2006, the National Industrial Court of Nigeria
(NICN) provides that in any event that there is a conflict between the rules of Common Law and
the principles of Equity, the principles of Equity shall prevail.

The maxims of equity are summarized as follows:

1. Equity acts in personam.

2. Equity acts on the conscience.
3. Equity does not suffer a wrong without a remedy.
4. Equity follows the law.
5. Equity looks at the intent rather than the form.
6. Equity looks on that as done which ought to be done.
7. Equity imputes an intention to fulfill an obligation.
8. Equity regards balance of convenience.
9. Where there are equal equities, the law prevails.
10. Where there are equal equities, the first in time prevails.
11. Equity like nature does nothing in vain or equity does not act in vain.
12. Equitable remedies are discretionary. Equitable remedies include; specific performance,
injunctions (preservative and mandatory), subpoena, rescission, estoppel, tracing etc.
13. Delay defeats equity.
14. He who comes to equity must come with clean hands i.e. he/she who seeks justice must
himself/herself be just.
15. He who seeks equity must do equity i.e. he/she who seeks equity must himself/herself do
justice.

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16. Equity never wants for a trustee.
17. Equity aids the vigilant not the indolent.
18. Equality is equity. Hence, equity does not permit double portion.
19. Equity will not aid a volunteer.
20. Equity will not permit a statute (law) to be used as a cloak for fraud.

Equity also provides an aggrieved person with some reliefs or remedies that do not exist under
the Common Law. They include:

1. Specific performance.
2. Injunctions: Interim, Interlocutory, Mandatory, Mareva, Anton Piller etc.
3. Rescission.
4. Estoppel.
5. Tracing.
6. Prohibition.
7. Mandamus.
8. Certiorari.
9. Declarations.
10. Reinstatement.
11. Writ of habeas corpus etc.

Civil Law

Civil law consists of all laws which regulate the affairs of people in a particular society which are
private and public in nature and not punitive in nature e.g. Law of contract, torts, constitutional
law, commercial law, family law etc. Civil law is interested in compensating aggrieved parties
and the declaration of rights and liabilities of parties.

Criminal Law

Criminal law is that part of law which creates offences or crimes and prescribes the necessary
punishments or fines e.g. Criminal Code Act/Law, Penal Code Act/Law, National Drug Law
Enforcement Act, EFCC Act, etc. Criminal seeks to achieve punishment, reformation and
deterrence in society.

Public law and private law

Public law deals with laws which regulate the affairs of the whole society. It regulates aspects of
the law which affects the generality of the people e.g. constitutional law, environmental law,
criminal laws, laws relating to drugs and trafficking.

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Private law on the other hand deals with aspects of law which regulate personal or individual
rights and duties e.g. law of contract, law of torts, commercial law, family law etc.

NOTE:

1. Some aspects of law may be private but still regulated by public laws e.g. marriage, sale of
goods, banking, business registration etc.
2. An individual may enforce a public right in certain instances e.g. the tort of nuisance.

Procedural and substantive law

Procedural law deals with laws which set out and create procedures, processes and stages for
doing certain things e.g. Criminal Procedure Code (for the Northern states), Criminal Procedure
Act (for the Southern states), Evidence Act, Companies Winding Rules, Fundamental Human
Rights Enforcement Procedure Rules, Matrimonial Causes Rules etc.
Substantive law on the other hand deals with laws which create wrongs, crimes, rights,
privileges, etc. Examples include: Criminal Code Act, Penal Code Act, Marriage Act, the
Companies and Allied Matters Act, Value Added Tax Act, Cyber Crimes Prevention Act etc.

Written and Unwritten laws

Written laws are laws which are codified or documented. Reference can be made to them for
example the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Penal Code Act,
Criminal Code Act etc. Written laws are products of a recognized body saddled with the
mandate of making laws for example the National Assembly and State Houses of Assembly. Such
laws may be amended or repealed.
Unwritten laws are laws which though in force, cannot be traced to any document. They are
subject of proof or proclamation by the courts. They include conventions and practices which
have over time gained the force of law. Unwritten laws are mostly found in countries where
tradition is upheld e.g. the United Kingdom.

TOPIC TWO
LAW AND OTHER RELATED CONCEPTS
Law is one of the methods of social control. In most cases, law is usually the formalized state of
other normative methods of social control like religion, morals, customs, habits, conventions etc.
In this sense therefore it is important to consider the similarities and differences between law and
those other related concepts in the society.
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1. LAW AND CONVENTION
Convention is a practice or usage which over time regulates human affairs in a particular place
over a particular subject matter.
Similarities between law and convention
1. Laws and conventions are both binding.
2. They are considered by a particular people over a particular subject matter.
3. They can be enforced by the court.
Differences between laws and conventions
1. Law, when duly passed has the force of law, convention has to be proved in court or
judicially noticed by the court.
2. Conventions cover a particular place or subject matter while law covers people,
institutions subject matter etc. In other words, law has a wider coverage.
3. Law in the form of the1999 Constitution of the Federal Republic of Nigeria (as amended) is
superior to any convention. See section 1(3) CFRN 1999 (as amended).

2. LAW AND HABIT

Habits are consistent and unbroken mannerisms which are either consciously or unconsciously
done.
Similarities between habits and law
1. Both of them are practiced by people.
2. Both of them demand a form of obligation.
3. The courts can apply both of them as binding and enforceable.
Differences between law and habits
1. While habits are unwritten, law is written.
2. While law is binding entirely, habits are only binding when proved and judicially noticed.
3. While habits are relative to a person, the law applies to everyone in the society.

3. LAW AND JUSTICE

Justice means fairness, rightness, just and reasonable. It is usually presumed or expected that the
law leads to justice.

Types of justice
There are two types of justice
a. Formal Justice: This is justice according to law. It is described as being rigid, mechanical
and strict. It is not influenced by other external factors like religion, morality, good
conscience, reason etc.

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b. Substantive Justice: It is described as liberal, flexible and influenced by external factors
like religion, morality, customs, conventions etc. It considers the law and other factors
before arriving at a decision.
Similarities between law and justice
1. Both are result oriented. They both seek peace and order in the society.
2. Both are complementary. Law does not exist without justice and vice versa.
3. Both are influenced by external factors like religion, history, values, norms, morality. Etc.
Differences between law and justice
1. Law is a body of rules while justice is arrived at when law and facts are considered.
2. Law is objective in nature (tangible facts and physical proof) while justice is largely
subjective in nature (based on the state of the mind and perception).
3. Law is substantive (codified) while justice is not codified but perceived.

4. LAW AND FREEDOM/LIBERTY

Freedom means the state of being unfettered (unrestricted). It also means the ability of a person
to do whatever he wants to do.

Similarities between law and freedom/liberty

1. Both are in existence to promote and to protect the society.
2. Both are idealistic concepts.
3. Both of them develop with time.
Differences between law and freedom/liberty
1. Law curtails liberty or qualifies freedom. See section 45 of 1999 CFRN which provides for
the following qualifications to curtail freedom liberty.
a. Defense in the interest of national security.
b. Public safety and public order.
c. Public morality.
d. Public health e.g. the case of Ebola virus disease (EVD), Lassa fever in Nigeria.
e. For the purposes of protecting the right and freedom of others.
2. Law is absolute or final until amended while liberty is not.
3. Law seeks the greater good of the society while liberty is individualistic.

5. LAW AND MORALITY

Morality is defined as what is good. Morals refer to the individual while morality refers to a
group or a community. Morals are part of an individual’s value system while morality reflects
the community’s value system.
Similarities between law and morality
1. They are both normative as they suggest what ought to be done.
2. They attract strong social pressure for conformity.
3. They pursue general social goals which are necessary for the progress of the society.
Differences between law and morality

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1. Rules of morality depend in ethical persuasion and justification rather than institutional
coercion.
2. Morality is relative to time, the individual, the community and subject to the tenor a
temper of the time while law is certain.
3. Law is covers the whole society while morality applies to individuals or a community
within the society.

6. LAW AND CUSTOM

Statutory definition:
Section 258(1) of the Evidence Act, 2011 defines ‘custom’ as “a rule which, in a particular district,
has, from long usage, obtained the force of law.”
Some scholarly definitions:
Suleiman Ismaila Nchi in The Nigerian Law Dictionary, new edn. (Keffi: Greenworld Publishing
Co. Ltd. 2010) p. 168, defines custom as, “A rule of conduct of long usage considered as obligatory by
those who practice it or in the society in which it is widely practiced.” He sees ‘customary law’ as
“Customs generally accepted as legally binding by a community…”
Custom or customary law is defined by Prof. Teslim Elias as “A body of customs accepted by
members of a community as binding upon them.”
Prof. Akintunde Obilade defines customary law as “Customary law consists of customs accepted by
members of a community.”
Niki Tobi, JSC defines customary law as, “The customs, rules and traditions which govern the
relationship of members of a community.”
Prof. A. D. Badaiki posits that, “Customary law is law which is generated by custom. The customary
law of a community is a body of customs and traditions that regulate…various kinds of relationships
between members of a community.”
Some judicial definitions:
In the case of Oyewunmi V. Ogunesan (1990) 3 NWLR (pt. 182) 207, per Obaseki, JSC defined
customary law as,
The organic or living law of the indigenous people of Nigeria regulating their lives and
transactions. It is organic in that it is not static, is regulatory in that it controls the lives
and transactions of the community subject to it. It is said that custom is the mirror of the
culture of the people. I would say that customary law goes further to import justice to the
lives of those subject to it.

In Owoniyi v. Omotosho (1961) ALL NLR 304, Bairamian FJ, held that, customary law is “A mirror of
accepted usage, among a given people.”
Customary laws therefore, are rules which are accepted as binding and enforceable by a
particular community of people. Customs acquire the force of law upon satisfying certain
conditions.
In Aku v. Aneku (1991) 8 NWLR (PT. 208) 280 at 292, Ndoma-Egba, JCA held that,
The unrecorded tradition and history of the people, practiced from the dim past and which
has ‘grown’ with the ‘growth’ of the people to stability and eventually becomes an intrinsic

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 part of their culture. It is a usage or practice of the people which by common adoption and
acquiescence and by long and unvarying habit has become compulsory and has acquired the
force of law with respect to the place or the subject matter to which it relates.

Simply put therefore, customary law is any rule practiced by a particular people who regard
same as binding on them and which has acquired the force of law.

Customary Law and the 1999 Constitution

Section 315 (3), (4) (b) and (c) provides that any law that was in existence or in force before the
commencement of the 1999 Constitution qualifies as “existing law.” This makes the rules of
customary law recognized by the Constitution.
However, where the rules of customary laws are contrary to the provisions of the Constitution,
such customary law is null and void or a nullity to the extent of such inconsistency. See Section 1
(3) 1999 Constitution.

ATTRIBUTES OF CUSTOMARY LAW

1. It must be in existence at any given time
For a rule of customary law to be considered as such, it must be in existence at any material time.
When such rule is not in existence at the material time, it will not be recognized. In the case of
Dawodu V. Danmole (1958) 3 FSC 46 a man died and was survived by four wives and 9 children.
At that time, there were two existing customary laws on how the property of the deceased could
be shared among the survivors. The first rule is known as “Idi-igi” which provided that the
property should be shared according to the numbers of wives. The other rule is known as “Ori-
Ojori” which provided that the property should be shared according to the number of children.
The trial court rejected the custom of Idi-igi on the ground that it was not fair. The Supreme Court
reversed the judgment and held that Idi-igi should be applied. The Judicial Committee of the
Privy Council (JCPC) in its judgment held that the Idi-igi custom represented the prevailing
custom at that material time.

Similarly in Kimdey V. Mllitary Governor of Gongola State and Ors.(1988) 2 NWLR (Pt. 77) 445 at
461,the Supreme Court held that “it is one of the characteristics of customary law that it must be in
existence.”

2. It is flexible
This means that customary law changes with the times. It is not confined to the past. It may have
its roots in the past i.e. in the history of the people but it progresses to their present and has the
capacity to reach into the future. Thus, in Balogun v. Bankole (1929) 10 NLR 36 at 57, Kingdom CJ
held that, “I am aware that Native Law and Custom are living things and may change.” It is this
flexibility of customary law that has enabled it to survive the onslaught of the socio-economic
dynamics and pluralistic worldviews of the 21 st century. Thus, the Yoruba custom on inheritance
has moved from idi-igi (based on number of wives) to ori-ojori (based on number of children).
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3. It must enjoy general applicability among the people
Customary law to have the force of law must have general applicability among the people. It
must not be applied to some members of the community only. This applicability means that it can
be enforced on all members of the community without reservation. Put in other words, it must
have universal applicability on members of the community. For example bride price, community
tax, rules of inheritance etc. Such custom must be known to apply to the generality of the
community not a select group.

4. It must be accepted as a binding custom

Members of the community to which such customs apply must accept, assent and recognize such
custom as valid and be obligated to same. Where a rule of customary law cannot be enforced, it is
not considered as custom yet. This means that non-compliance attracts the appropriate sanctions
or penalties where such are stipulated. It is therefore part of the growth process of children to
know such customs and keep them.

5. It is mostly unwritten
Customary law is mostly unwritten due to its nature of being handed down from generations
past. However, with the increase in literacy, some aspects of customary law have been written
either as documents of reference of enacted as Laws. So, while some communities prefer their
rules of customary law unwritten, others have developed them into a system of laws which can
be resorted to. In cases of written customary law, it is then subject to amendment or review.
Where it is not written, it undergoes the requirement of the law as enshrined in sections 16, 17, 18
and 19 of the Evidence Act, 2011, as we will soon discuss hereinafter.

APPLICABILITY OF CUSTOMARY LAW IN NIGERIA

Some statutes and case law in Nigeria provide for how customary law ought to be applied in any
given situation. These are as follows:

1. Judicial Notice:
Section 16(1) of the Evidence Act, 2011, provides that, “A custom may be adopted as part of the law
governing a particular set of circumstances if it can be judicially noticed...” Therefore, any person
relying on a custom in court is obligated to prove same as required by section 16(2) of the
Evidence Act, 2011. A custom is judicially noticed if it has been adjudicated upon once by a
superior court of record.

A superior court of record is a court listed in section 6(5) of the 1999 Constitution. There was
controversy as to how many times a custom should be adjudicated upon for it to have the force of
law under section 14(2) of the repealed Evidence Act, cap. E.14, Laws of the Federation of
Nigeria, 2004. In the latter law, it provides inter alia that judicial notice of a custom may only be

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done where such custom has been acted upon by a court of superior record or co-ordinate
jurisdiction in the same area to an extent which justifies the court asked to apply it.

Under the Evidence Act, 2011 however, all a person relying on a rule of customary rule is
required to do is to show that it has been adjudicated upon ONCE by a superior court of record.
Thereafter such custom can be judicially noticed in subsequent proceedings.

2. Proved As A fact by evidence

Section 16(1) of the Evidence Act, 2011 provides inter alia, “A custom may be adopted as part of the
law governing a particular set of circumstances if it can be…proved to exist by evidence.” Also, section
18(1) of the Evidence Act, 2011 states that, “Where a custom cannot be established as one judicially
noticed, it shall be proved as a fact.” Proving customary law as a fact or by evidence is done
primarily by producing persons vast in such customs to testify before the Court as provided in
section 18(2) and section 73 of the Evidence Act, 2011. The testimonies of such custodians of
customs are treated as opinion evidence. The evidence of these so-called experts is not automatic.
They must pass through other rules applicable to evidence in the Courts.

3. The repugnancy test

This is captured succinctly in section 18(3) of the Evidence Act, 2011 as follows: “In any judicial
proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy,
or is not in accordance with natural justice, equity and good conscience.” Underlining supplied.

This three-fold appraisal of any rule of customary law has gained prominence and judicial
pronouncement. Broken down, natural justice represents the twin pillars of audi alterem partem
(hear the other side/party) and nemo judex in causa sua (no one should be a judge in his own
cause/matter). Equity simply means what is fair, just and noble. Good conscience means an
untainted conscience toward God and man. It means clearness of mind, impartiality and purity of
mind over an issue. Taken together, customs must be fair, just, impartial and must not work
injustice and discrimination of any sort.

In Agbai v. Okogbue(1991) 7 NWLR (PT. 204) 391, the Supreme Court per Nwokedi JSC stated thus:
The doctrine of repugnancy in my view affords the court the opportunity for fine tuning
customary laws to meet changed social conditions where necessary, more especially as there
is no forum for repealing or amending customary laws…When however customary law is
confronted by a novel situation the courts have to consider its applicability under existing
social environment.

Instances where the repugnancy doctrine was applied by the Courts:

 Edet v. Essien (1932) 11 NLR 47: the Plaintiff (Edet) claimed title to custody of three children
born to another woman, because the bride price he had paid on the woman had not been

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 refunded to him. The court held that this customary law was repugnant to natural justice,
equity and good conscience and therefore was not enforceable.
 Solomon v. Gbobo (1961) WNLR 48: a custom where a husband can divorce his wife at will but
the wife cannot obtain divorce without the consent of the husband was declared repugnant to
natural justice, equity and good conscience.
 Meribe v. Egwu (1979) 3 S.C. 23: a customary law rule which permitted the marriage of one
woman by another woman was held to be repugnant to natural justice, equity and good
conscience.
 Inasa v. Oshodi (1934) A.C. 99:a custom where an entire family was ejected from a land because
of the misbehavior of one member of that family was held to be contrary to natural law and
natural justice. The court held that only the offending member of the family should be
sanctioned.
 Agidigbi v. Agidigbi (1992) 2 NWLR (PT. 221) 98: the Supreme Court held that a Bini custom
that permitted the eldest son to exclusively inherit the deceased father’s personal living house
is not repugnant to natural justice, equity and good conscience.
 Nzekwu v. Nzekwu (1989) 2 NWLR (PT. 104) 373: a custom which permitted that the head of a
deceased husband’s family could singlehandedly sell the deceased’s property while the wife
was alive was held to be uncivilized and repugnant to natural justice, equity and good
conscience.
 Mojekwu v. Mojekwu (1997) 7 NWLR (PT. 512) 283: a custom wherein inheritance was restricted
to male children of a deceased person or his brother’s male children to the exclusion of the
female children was held repugnant to natural justice, equity and good conscience. In this
case, a man died intestate (without a will) and had no sons but daughters. The Court of
Appeal held that the widow and her daughters could inherit the property of the deceased.
The erudite Niki Tobi, JCA (as he then was of blessed memory) rightly captured the Court’s
mind as follows:
We need not travel all the way to Beijing to know that some of our customs…are not
consistent with our civilized world in which we all live today, including the appellant. In
my humble view, it is the monopoly of God to determine the sex of a baby and not the
parents. Although the scientific world disagrees with this divine truth, I believe that God,
the Creator of human beings, is also the final authority of who should be male or female.
Accordingly, for a custom or customary law to discriminate against a particular sex is to
say the least an affront on the Almighty God Himself. Let nobody do such a thing. On my
part, I have no difficulty in holding that the custom is repugnant to natural justice, equity
and good conscience.

The judicial attitude as captured in the above case show that the courts will always determine the
validity of any customary law rule before same is applied. Where it is repugnant to natural
justice, equity and good conscience, same will be declared unenforceable.

4. The incompatibility test

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This is otherwise known as the exclusive rule. Where a situation or transaction is governed
exclusively by a statute (law), customary law cannot be applied to such situation or transaction
for the time being in force.

Thus, by section 1(3) of the 1999 Constitution, any customary law rule which seeks to deal or
handle any matters covered by the Constitution is null and void to such inconsistency.
In the case of Agbai v. Okogbue (supra), the plaintiff respondent a fashion designer carried on
business in Aba. The defendants appellants were members of the Aba branch of his (Agbai’s)
village age group. The defendants alleged that the plaintiff refused to join the branch of their age
grade and in sanctioning him, entered his shop and carried away his sewing machine. Upon their
refusal to return the sewing machine, he sued. The appellants contended that as a native of their
village, he was obliged to join their age grade. The Supreme Court held that the respondent in
exercise of his right to freedom of association under the Nigerian Constitution is free to join or
not to join any lawful association of his choice and could not be compelled by custom to join one
if he does not so desire.

5. The public policy test

Public policy is defined as the general welfare, good and well-being of the community at a
particular time. Thus, Chapter II (sections 13-24) of the 1999 Constitution provide for the welfare
of the citizens of Nigeria in different respects. However, the said Chapter II is not justiciable i.e. is
cannot be enforced in the Courts.

However, the point being made is that a custom must not offend public policy. Such a custom
must not be at variance with what is considered to be precious, valuable and virtuous in the
society. In this wise, no custom must contradict whatever society holds or adjudges to be noble,
just, correct or right at any given point in time.

In the case of Okonkwo v. Okagbue (1994) NSWSR 352 at 355, an alleged custom which required a
woman married to a dead man nominally in order to bring forth children for him in his name
was held to be contrary to public policy.
Similarly, in Helen Odigie v. Iyere Aika (1985) 1 Nigerian Bulletin of Contemporary Law, 51, a woman
had married a young girl to bear children for her. This custom of woman to woman marriage was
held to be odious, outrageous and contrary to public policy.
In Alake v. Pratt (1955) 1 WACA 20, the West African Court of Appeal (WACA) held that the
acceptance of paternity of a child born outside wedlock by a man during his lifetime confers
legitimacy on the child to equally share in the man’s estate with the children born to the man in a
marriage under the Marriage Act. The latter decision is supported by section 42(1)(a) & (2) of the
1999 Constitution, which forbids discrimination against any person by reason of circumstances of
birth.

Similarities between Law and Customs

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1. Both of them are binding or enforceable.
2. Both of them are normative.
3. They are both dynamic.
Differences between Law and Custom
1. Customary law requires validity while law once enacted is applicable.
2. Law covers a wider subject matter or people but customary law is restricted to a particular
district, community or people group.
3. While law can be amended and it becomes applicable customary law which is largely
unwritten must be proven valid.

ISLAMIC LAW VIZ-A-VIZ CUSTOMARY LAW

It used to taken and applied that Islamic law was part and parcel of customary law and such all
the requirements of validity applied to Islamic law simpliciter. However, Islamic law is no longer
part of or regarded as customary law. This was settled in the case of Alkamawa V. Bello (1998) 6
SCNJ 127, where Wali JSC stated as follows:
Islamic law is not the same as customary law as it does not belong to any particular tribe. It
is a complete system of universal law, more certain and permanent and more universal than
the English common law.

It therefore means that the decision in Guri v. Hadejia Native Authority (1959) 4 FSC 44, where a
rule of Maliki law which prohibited an accused person who is standing trial for highway robbery
from defending himself and the rule was declared as repugnant to natural justice, equity and
good conscience, will be decided differently taken into consideration the decision in Alkamawa V.
Bello (supra).

Whenever a matter involving Islamic law comes up for determination, the rules of Islamic law
will not be subjected to the validity tests. They will be applied as dictated by the Quran and
Haddith and according to the relevant interpretation of same. Where the case borders on
criminality, the Penal Code or Criminal Code as the case may be is applied in conjunction with
the Quran and Haddith.

A case which captures this position vividly is Usman Kaza v. State (2008) 7 NWLR (PT. 1085) 125.
Several issues came up for determination in that case. The Supreme Court considered the defence
of provocation raised by the appellant and held thus,
The issue to be put in its straight perspective is that Islamic law…makes no provision for the
defence of provocation. A sane and adult Muslim stands responsible and answerable to all
his deeds or misdeed. Secondly, where he makes a free and voluntary confession, he is bound
by his confession which is even regarded to be a better form of evidence than calling of
witness.

On Shariah law and fair hearing, the Supreme Court added:

Sharia is a stable jurisprudence built on the tenets of fair hearing. An accused person
cannot, in principle, be convicted without being heard. And what is more, a hearing must be
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 before a judicially recognized adjudicatory body; not a collective body of local persons out to
do jungle justice; a kangaroo court…Appellant and others paraded primitive and uncouth
justice and meted same on the deceased clearly outside the rule of law. And so I entirely
agree with the Court of Appeal that there was no justification for the killing of the deceased.

Similarly, Tanko Muhammad, JSC held as follows:

In the case of the appellant who have no authority or warrant whatsoever to adjudicate
under both the common law and Sharia, they constituted themselves into a kangaroo court
in order to realize their purpose or plan to kill the deceased. The only evidence against the
deceased was the rumour they overheard or hearsay allegation that he had insulted the Holy
Prophet.

His Lordship in the same vein, opined thus:

There is no legal justification in the action taken by the appellant in killing the deceased for
his supposed offences. Islamic religion is not a primitive religion that allows its adherents to
take the law into their own hands and to commit jungle justice. Instead there is a judicial
system in Islam which hears and determines cases including the trial of criminal offences
and anybody accused of committing an offence against the religion or against a fellow
Muslim brother should be taken to the court (either a Sharia or a secular/common law court)
for adjudication by a court of law that he will be liable to a punishment which will be carried
out by an appropriate authority (i.e. the Prison).

On the trial procedure enshrined under Islamic law, Justice Tanko Muhammad (JSC) states as
follows:
…if any of the crimes involving HUDUD (fixed punishments), QISAS (Retaliation) and
TA’AZIR (penal/exemplary punishments) is imputed to a person he will be prosecuted
against in a court of law. If the charge against him is established, sentence will accordingly
be passed keeping in view the prescribed punishment. If the charge cannot he established, the
accused will be acquitted. If the sentence is passed, the ruler or the competent authority will
be responsible for its execution in respect of offences involving hudood and penal
punishments. Such punishments can be executed by the ruler or his deputy for HAD is
Allah’s right which has been made obligatory. Hence, the responsibility of its execution will
be vested in the Imam or the ruler of the community.

The Supreme Court in this case found time and space to discuss its findings as regards what the
Shariah provides for on the sanctity of human life in this way:
Sharia guarantees and values the sanctity and dignity of human life. That is why it outlaws
unlawful killing of human life. The Quran has several verses in various chapters where it
outlaws such nefarious acts. For instance it provides in chapter 6 (Surat—An’Am) verse
151 as follows:
‘And do not kill the souls which Allah has forbidden (to be killed) except by legal right.’
The Prophet (SAW) is reported to have said that the first action to be judged on the Day of
Judgment is the spilling of blood…

Then, on the three things that are illegal for a Muslim, the apex Court per Tanko Muhammad,
JSC stated thus:
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 In another Hadith, the Prophet is reported to have said that three things have been made
illegal to a Muslim: (i) to spill the blood of another or deprive him of his life (ii) to deprive
him of his property and (iii) to deprive him of his honour and integrity.

The Supreme Court in the above case employed both Islamic law and conventional law in its
adjudication. There was no reference to Islamic law being required to pass through the validity
tests or other methods of authentication for the sake of applicability.
On the final note, the Court found that the appellant was guilty of the offences charged and his
earlier sentence of dead by hanging was affirmed in the most poignant manner thus:
I cannot see how these kind of people shall have any respite by the law. What is good for the
goose is good for the gender (sic). Life is precious to all and sundry. He who kills by the
sword shall die by the sword. I have no sympathy for the banishment of such busy bodies
who respect no human life due to their high degree of misapprehension of the law or, should I
say, complete ignorance of the law. The appellant failed to convince me through his
explanations. But he is free to make further and better explanations to the hang man, though
belatedly it may be.

This reasoning is in accordance with good conscience, equity and natural justice and public
policy. This decision confirms the fact that Islamic law enjoys a higher degree of certainty and
applicability than customary law and thus cannot be classified as customary law.

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 TOPIC THREE
CONSTITUTIONAL CONTEXT OF LEGAL METHOD

1. SUPREMACY OF THE CONSTITUTION

Supremacy connotes something that is final, absolute, overriding and superior. The term
supremacy of the constitution connotes that the constitution ranks above and beyond any or
every other law, custom, convention, habit or anything which has the force of law.
Section 1 (1) of the Constitution (as amended) provides as follows:
This constitution is supreme and its provisions shall have binging force on all
authorities and persons throughout the Federal Republic of Nigeria

Section 1 (3) of the Constitution (as amended) adds as follows,

If any other law is inconsistent with the provisions of this constitution, this
constitution shall prevail and that other law shall to the extent of the
inconsistency be null and void

In the case of HRH Eze Michael Anyaoha V. Chief Godson Obioha & 3 Ors (2014) 6 NWLR (pt. 1404)
445,the Supreme Court held that,
A constitution is a very serious document. It is the organic law of a nation, the
grundnorm. It defines the scope of governmental sovereign power and guarantees
individual civil rights and civil liberties. It should not be treated lightly or with
levity. There must be certainty as the document described as the constitution. It
should not be left to conjecture.

The Supreme Court in the foregone case proceeded to state that,

The Constitution of the Federal Republic of Nigeria 1999 (as amended) was brought
into being through the Constitution of the Federal Republic of Nigeria
(Proclamation) Decree No. 24 of 1999, signed by the Head of State. The First,
Second and Third Alterations of the constitution were authenticated by the clerk of
the National Assembly by section 2 (1) of the ActsAuthentication Act cap. A2 LFN,
2004. Thereafter, they were gazetted. These steps ensured that only one version of
the constitution is genuine.

When we consider the supremacy of the Nigerian Constitution critically viz-a-viz certain
practices, we may sadly say that the Nigerian Constitution is not supreme. For instance, the
Constitution guarantees the right to freedom of association and expression (see sections 39 and
40) but there are countless instances where overzealous security agents deny citizens these rights
insisting that they must obtain police permit or clearance. Also, section 36(5) of the Constitution
provides that an accused person is presumed innocent until his/her guilt is proven by the
prosecution. In some cases, individuals having obtained bail were re-arrested by security
operatives and kept in detention unlawfully.

2. RULE OF LAW
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Rule of law postulates that actions, processes, institutions, persons and activities in every society
are predicated on the dictates of the law and not on the whims, caprices, wishes or desires of
persons.
This concept was popularized by the English philosopher A.V. Dicey. He posited that rule of law
includes the following:
1. The state and individuals are subject to the law.
2. The judiciary is a necessary agency of the law.
3. Government should respect the rights of individual citizens.
4. The judiciary is assigned by the constitution the determination of all actions relating to matter
in disputes between persons or between government and any person in the society.

Dicey’s contribution to the concept of rule of law in modern times has been conceptualized in the
following terms:
1. That the law is supreme or the supremacy of the Law.
This is the superiority of the law or the Constitution in a democratic society. Thus, laws are
superior to martial laws, emergency law or military rule. See section 1 of the Constitution
of the Federal Republic of Nigeria, 1999 (as amended). As John Locke stated:
Freedom of men under government is to have a standing rule to live by, common to everyone
of that society and made by the legislative power created in it, and not to be subject to the
inconstant, unknown arbitrary will of another man.
2. That all are equal before the law or equality before the law.
There should not be any form of favouritism or exemptions in the application of the law.
Only the law should permit any such exemptions or exclusions. See for instance, immunity
under section 308 of the 1999 Constitution. No person or body is to arbitrarily excuse the
law from applying to him or it.
3. That all actions should be according to the law.
Any action must be predicated on the law and not according to the whims and caprices of
a person or a body. The suggestions or believes of persons in society should not override
the express provisions of the law. If the people feel the law is inadequate, they should
initiate the process of repel or amendment rather than willful disregard to the law.
4. Independence of the judiciary and respect for its decisions:
Under the 1999 Constitution, section 6 vests judicial powers and functions on the judiciary
or superior courts. Additionally, courts created by the state legislature are also courts
within the meaning of the judiciary in Nigeria. The decisions of these courts are binding
and enforceable except when set aside on appeal by a superior court. Only the Supreme
Court of Nigeria is final. Such finality means that its decisions are binding on all other
courts in Nigeria. Willful disobedience and disregard of such decisions of the courts lead
to impunity, which ultimately reduce a country to a lawless state. In the latter case, might
becomes right, life becomes “brutish, harsh and short” and self-help reigns. An unfettered
judiciary is a blessing to any nation while a fettered judiciary is a curse to any nation.
5. The rule of law excludes arbitrary power.
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 This was captured in the locus classicus of Governor of Lagos State v. Ojukwu (1986) 1 NWLR
(pt. 18) 621, where the Supreme Court that no one is entitled to take possession of the
premises of another person by a strong hand or multitude of people. The Court in that case
restored the respondent (Ojukwu) back to the possession of the house pending the
determination of the case. Also, in A.G Bendel State V. Aideyan (1989) 4 NWLR (Pt.118) 646,
the Supreme Court held that the act of the appellant state government in purportedly
acquiring the respondent’s building, was against the rule of law. The Supreme Court
further added that any act of government which is not covered under an enabling law is a
nullity.
6. Respect and protection of human rights:
Sections 33-46 of the 1999 Constitution provides a glossary of rights and freedoms which
are protected by the Courts. Without these rights men lose the right to be human. Rights,
liberties and freedoms are to be enjoyed by men in the society and should only be
curtailed by the Constitution and not by any person or body. These rights and freedoms
can only be curtailed in relation to carrying out a sentence of a court of competent
jurisdiction, for public good or safety, during emergency etc. In the case of The Director,
SSS v. Agbakoba (1994) 6 NWLR (pt. 351) 475, the respondent brought an action against the
appellant for the forceful seizure of his passport. He claimed that it was in violation of his
right to personal liberty, freedom of thought, freedom of expression and freedom of
movement, guaranteed under sections 32, 35, 36 and 38 of the 1979 Constitution (now
sections 35, 38, 39 and 41 of the 1999 Constitution). The respondent sought for a
declaration that the acts of the appellant were illegal and also a mandatory order for the
release of his passport which was seized without reasonable cause or justification. The
Court agreed with the respondent and declared the acts of the appellant illegal and
ordered that his passport be released to him. The appellant contended before the Court the
statement on the Nigerian passport, “a passport may be withdrawn at any time”, was
inconsistent with the provision of the Constitution and so void.

Like the case of supremacy of Constitution, some Nigerian leaders have ruled with grave
impunity and total disregard for the rule of law. We have situations where validly elected local
government officials were ‘suspended’, ‘dissolved’ or ‘removed’ from office unlawfully.
Similarly, officials whose employment enjoy statutory flavor have been removed from office
without due process followed. Wives of government officials and public officers interfere with
governmental processes without let or hindrance. In some occasions, monetary judgments given
against government are defiantly not paid. Contracts are terminated at any whim and caprice.
Public procurement has been reduced to bedroom, family or political party affair.

Impunity and disregard for the rule of law is responsible for deep seated injustice pervading the
nation. It is most unfortunate that those who swear by the Constitution to protect and defend the
Constitution are the worst violators of the same Constitution.

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3. SEPARATION OF POWERS

This doctrine was popularized by Baron de Montesquieu in his book which is translated, “The
spirit of the laws” in 1748. He stated that for effectiveness and in order to curb anarchy and abuse
of powers, powers of government should be divided or allocated amongst different arms of
government.

In modern times, the doctrine of separation of powers is based on the principle that powers
should be vested in the three arms of government: the Executive, Legislative and Judiciary.

The Legislature
Section 4 of the constitution provides for the legislative powers of the National and State Houses
of Assembly. Section 4 (1), (2), (3), (4), (5) describes the legislative powers of the National
Assembly. The Second Schedule to the 1999 constitution provides for the matters which are
within the legislative competence of the National Assembly.
Section 4 (6) (7), (8) provides for the legislatives powers of a State House of Assembly. The
Second Schedule also provides for matters within the legislative competence of a State House of
Assembly.
NOTE:
1. Legislative competence means the right which a legislative house may make laws. It also
provides a legislature with validity in law making.
2. Where a law is made by a State House of Assembly which is contrary to a law made by a
National Assembly or where the National Assembly makes a law which is contrary to an
existing law of a State House of Assembly or where a State House of Assembly legislates
outside its legislative competence, such a law is in any of the aforementioned instances is
inconsistent and void to the extent that it is contrary to the Act of the National Assembly.
See, section 4 (5) 1999 constitution (as amended).

The Executive
Section 5 (1) provides for executive powers of Federation which is rested in the president. Section
5 (2) of the constitution provides for executive powers of the state which is vested in the
governor. The president or governor may exercise such powers through ministers, departments,
commissioners, boards, commissions etc. Note that the police, military and paramilitary
organizations fall order the executive arm of government.

The Judiciary
Section 6 provides for judicial powers for the Federal and State judiciary or courts. Section 6 (5)
provides a list of courts which are referred to as courts of superior record. The judges who sit in
the courts of superior record are called judicial officers. The judiciary i.e. the Courts is popularly
referred to as the last hope of the common man. In the case of Jumbo v. Petroleum Equalization Fund

27 | P a g e
(Management Board) (2005) 4 FWLR (PT. 294) 2335 at 2337, Pats-Acholonu, JSC painted a graphic
picture as follows:
Courts are not frightened of an ouster clause. They respect it but when an ouster clause
seeks to make it impossible for the courts to protect the common man, and make law which
cannot stand the rest of reason or that is affront to decency and intelligence, then a court
should be careful not to lend its weight to a law that would make it enemy of the common
man and not the last hope of the common man.

Functions of the Arms of Government

Legislature
1. Law making.
2. Oversight functions over the executive.
3. Sponsoring of private member’s bills.
4. Carry out public investigations.
5. Responsible for enacting appropriation bills.
6. Receive and handle public petitions.
Executive
1. Implementation of laws as enacted by the legislature and polices of government.
2. Sponsoring money bills which are passed as Appropriation Act or Law.
3. Through the police and other security agencies, the executive ensures law and order.
4. Carry quasi–judicial functions through Commissions of Inquiry, Panels, Committees etc.
5. Represent the nation or State of the federation internationally.

Judiciary
1. Interpret laws enacted by the legislature.
2. Regulation of the legal profession through the Body of Benchers.
3. The judiciary checks both the legislative and executive arms of government.
4. The judiciary stabilizes the society by upholding the rule of law.
5. Ensure discipline among judicial officers through the National Judicial Council (NJC).

Checks and Balances

The doctrine of separation of powers in practice is not water tight. It is not carved in stone. It is
not sacrosanct. In practice, what is obtainable is not independence of the arms of government
from one another but interdependence of the arms of government for the efficient working of
government.

In order to achieve this efficiency, the concept of checks and balances was developed. Checks and
balances simply refer to the act of each arm of government serving as a moderator or control
agent to the other arm. The “control” here does not mean taking over the responsibilities of an
arm of government by another. It means that each arm of government is to watch the other arms
of government and ensure that they confine themselves to their constitutionally allocated powers.

28 | P a g e
Without checks and balances, tyranny and chaos will be inevitable in society. Checks and
balances aid the management of powers between and among the respective arms of government.
The absence of checks and balances breeds executive recklessness, legislative rascality and
judicial indiscretions. The effect of these of the society is best imagined than experienced.

Examples of checks and balances include the appointment and removal of judges, the swearing in
of the president and governor, impeachment proceedings of the president or governor,
interpretation of the Constitution and other laws etc.

POSER:
In line with the doctrine of separation of powers as encapsulated in sections 4, 5 and 6 of the
Constitution, does the Code of Conduct Tribunal have the powers of a Court to hear and
determine criminal matters and causes? The case in Nigeria being that the Code of Conduct
Bureau is domiciled within the Presidency. Does it not amount to the Executive arm of
government also partaking in judicial functions?

29 | P a g e
 TOPIC FOUR
METHOD OF SOCIAL CONTROL THROUGH LAW

The popular legal maxim says it all--ubi jus ubi societa i.e. where there is society, there is law.
Social control through law refers to the ways and means law is deployed and employed in society
towards the attainment of set objectives—peace and tranquility. This is also the working of law in
the society. Law is a means to an end—justice; it is a vehicle leading to destination—stability in
the society. Anything short of this makes law a problem to society.

We will consider seven (7) of such methods used by law in social engineering.

1. PENAL METHOD
This method deals with the creation of offences or crimes and their respective punishments. It
indicates punitive measures against violations, infractions and any anti-social behaviour declared
as criminal.
The penal method revolves around three concepts.
i. Retribution.
ii. Reformation/Rehabilitation.
iii. Deterrence.
Merits of Penal Method
1. It ensures retribution is meted to offenders.
2. It serves as a chance for reformation/rehabilitation of offenders.
3. It serves as deterrence to convicted and prospective offenders.
Demerits of Penal Method
1. It does not ensure the eradication of crime.
2. It seems to favour the wealthy (a Marxian postulation).
3. The custodial/correctional system in Nigeria does not have the capacity to reform or
rehabilitate offender. Most times, offenders turn out worst after their incarceration.
NOTE:
The penal method is also referred to as the criminal justice system. It is the combination and
composition of different sectors/segments like the police, prison, judiciary, juvenile centers,
private individuals and criminal departments.

2. THE GRIEVANCE REMEDIAL METHOD

This method operates under civil law. It is a mechanism which seeks to address disputes arising
from civil transactions e.g. contract, commercial law, torts, marriage etc. Under this method, an
aggrieved party if successful is entitled to damages, injunctions, specific performance, restitution
and other remedies provided from in civil law.
Merits of grievance remedial method
1. Damages serve as a relief to aggrieved person.

30 | P a g e
2. Equitable remedies if granted can preserve property, positions and status of parties or
property.
3. Declaratory orders if granted by a court determine the status and right of parties or
property.
Demerits of grievance remedial method
1. Delays in civil proceedings often defeat justice.
2. Damages are sometimes inadequate compensation.
3. Technicalities in law and procedure sometimes frustrate the merits of a case.

3. PRIVATE ARRANGING METHOD

Under this method, the law permits individuals to engage in social activities or transactions
which are regulated by the law. Example includes; contract, sell of land, wills, marriage,
insurance etc. The law sets certain guidelines and procedures on how such activities or
transactions can be carried out.
Merits of private arranging method
1. It allows individuals to express their desires, ideas and liberties within the law.
2. It brings about development in society e.g. land law and hirer purchase.
3. Parties are permitted to determine how their disputes should be resolved e.g. arbitration
clause in commercial agreements.
Demerits of private arranging method
1. As an individual effort, it is prone to abuse.
2. Parties may by their agreement ousts the jurisdiction of courts or frustrate adjudication.
3. In a country like Nigeria, illiteracy and ignorance defeats the essence of this method.

4. THE CONSTITUTIVE METHOD

Under this method, the law permits individuals to come together and form entities or
organizations which are called artificial persons in law. The law recognizes the existence of such
organizations and not the human elements that formed the organization. The law seeks to
promote collective responsibility rather than individual responsibility.
Merits of the constitutive method
1. It protects individuals from excessive liability e.g. in bankruptcy.
2. It promotes societal causes e.g. associations or NGOs who cater for specific social issues or
class of persons.
3. It encourages collective responsibility instead of individual responsibility.
Demerits of the constitutive method
1. It is considered as a protective cover for fraud e.g. Salomon V. Salomon & Co. Ltd (1897) A.C.
22.
2. When insolvency and bankruptcy occurs, it creates hardship for creditors.
3. NGOs and associations are subject to abuse—financial and management.

5. FISCAL METHOD

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Under this method, the law is used to discourage or stop ant-social activities or transactions by
the imposition of taxes or stringent registration procedures. In this method, the government seeks
to discourage activities which are detrimental to social norms and health of the citizens.
Merits of the Fiscal Method
1. It serves as a source of revenue to the government (taxes, levies, dues etc.)
2. It is used to curb anti-social activities.
3. Levies and fines are better options that convictions.
Demerits of the Fiscal Method
1. The anti-social activities still continue despite the fines.
2. The incidence of tax evasion and tax avoidance defeat taxation of anti-social activities.
3. Taxes, dues, levies etc. are collected by designated bodies which are prone to fraud.

6. ADMINISTRATIVE REGULATORY METHOD

Under this method, the law is used to setup administrative bodies with the responsibility of
setting standards, regulating and enforcing same. For example NAFDAC, NDLEA, NESREA,
SON, NBC, BON, NCC, etc. These administrative bodies employ mechanisms like inspection,
warning, fines and levies.
Merits of the Administration Regulatory Method
1. It ensures that wholesome and beneficial activities are permitted in society.
2. It serves as a preventive mechanism against anti-social activities.
3. It ensures that government through its agencies maintains watch on society.
Demerits of the Administration Regulatory Method
1. There is a limit to the prohibition of anti-social activities.
2. Inadequate enforcement strategies cripple the effectiveness of regulatory bodies.
3. Excessive regulation or inadequate regulation promotes anti-social activities like
smuggling and the growth of the “black market.”

7. THE CONFERRAL OF SOCIAL BENEFIT METHOD

The law is used by the state to promote the welfare of citizens. In this regard, government
through the law establishes agencies or bodies to provide social amenities or infrastructure for
the benefit of citizens. Section 17(2) & (3) Constitution (as amended) provides to the effect that the
welfare of Nigerian citizen shall be the focus and pursuit of government. However, Chapter II of
the constitution which includes the foregone section is non-justifiable.
Merits of the Conferral of Social Benefit Method
1. It enhances physical development i.e. infrastructure.
2. It preserves social justice through the provision of social amenities and services.
3. Citizens are valued by the government thereby promoting patriotism.
Demerits of the Conferral of Social Benefit Method
1. The non-justiciability of Chapter II of the 1999 Constitution (as amended) renders the good
intention of government irrelevant.
2. Lack of data and statistics.

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3. The existence in Nigeria of powerful disruptive forces like religion and ethnicity.

NOTE:
In some instances, the state or individuals may employ more than one method of control through
law to achieve the desired goal—justice, peace and order in society. The law is actually a means
to an end; it is not an end in itself. More so, the law is made for man and not vice versa i.e. man is
not made for the law. In effect therefore, law must at all times and for all purposes suit the
prevailing conditions of man.

It is also worthy of note that in most developed countries of the world, they promote and
emphasize decriminalization and de-radicalization above convictions and punishments. Thus,
they integrate plea bargain in their processes. We hope this finds more expression in Nigeria
because the cost of public litigation especially involving financial crimes is high and the judicial
option of fighting corruption is fraught with a lot of hurdles like full dockets, few judges,
prosecutorial challenges, evidence gathering, etc.

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 TOPIC FIVE
METHODS OF DISPUTE RESOLUTION
Wherever more than two persons come together, disputes are inevitable. Therefore, what should
concern us is not preventing disputes but how best to resolve them. When disputes are not
properly resolved, society suffers. On the other hand, when disputes are settled properly, society
moves forward. One major sign of development of any society is the dynamism of its dispute
resolution mechanisms.

Dispute
Dispute is defined as, “A conflict of rights, subject of litigation, controversy.” See Nchi. S.I. The Nigeria
Law Dictionary (Keffi: Green world publishing Co. Limited, 2010) p.197.

It is also defined as, “A conflict or controversy especially one that has given rise to particular law suit.”
See Garner, B.A. et al, Blacks Law Dictionary, 9th edn (Oxford: Oxford university press, 2004) p.
540.

Resolution
It is defined as “the act of resolving or settling a problem, disagreement, conflict etc. see Oxford
Advanced Learner’s Dictionary 7th Edn., p.1244.

Methods of Settling Disputes

They are basically two methods of settling or resolving disputes. These are.
- The adjudicatory method
- Non adjudicatory method

It is worthy to note that when it comes to justice delivery no one method is satisfactory.
Sometimes it takes both methods to achieve justice. As society changes and the judiciary get
modernized, the emphasis is now on an integral pattern of justice delivery which incorporates
both the adjudicatory and non-adjudicatory methods of dispute resolution.

The erudite Niki Tobi, JCA (as he then was, of blessed memory) in Okpokpo v. Uko (1997) 11
NWLR (PT. 527) 100, stated as follows:
In my view, if there are two routes to the truth—searching or truth—finding process, and
one of the routes is shorter than the other, a trial court is well advised to follow the shorter
route, if it will result in doing the same justice to the parties, as the longer route. This will
certainly save the already crowded time of the court and it will help in no little way in the
quick dispensation of justice. The courts will like it; the parties will like it too. The
administration of justice will be enhanced and that is good for society and the public.

ADJUDICATORY METHOD

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This method is also called the jural method or litigation or formal method of resolving disputes.
Under this method, every form of dispute is determined by the court. Only disputes which are or
require judicial pronouncements are entertained by the court. Other disputes like academic
exercises, speculative disagreements, or some political arguments do not warrant judicial
determination. The latter category is also called hypothetical cases or scenarios.
Adjudicatory method involves FACT FINDING where rules and procedures are used. Litigants
present their cases either by themselves or through a legal practitioner. After hearing parties, a
judge decides either in favour or against the party who instituted the suit (Plaintiff). The court
applies the law to the set of facts (evidence) in arriving at a decision.

The 1999 Constitution in Section 36(1) provides as follows:

In the determination of his civil rights and obligations, including any question or
determination by or against any government or authority, a person shall be
entitled to a fair hearing within a reasonable time by a court or other tribunal
established by law and constituted in such means as to secure its independence and
impartiality. Underlining supplied for emphasis

In the celebrated case of Legal Practitioners’ Disciplinary Committee (LPDC) V. Gani Fawehinmi
(1985)2 NWLR(pt. 2) 300, Karibi Whyte, JSC held as follows:

In the circumstances of this country, fair hearing is an entrenched provision of the

constitution which cannot be displaced by legislation, however unambiguously
worded.

NOTE:

1. Only disputes that are justiciable are entertained by a court.

2. In Nigeria, a system of appeal is provided for from the lower courts:
Supreme Court

Court of Appeal

Customary/Sharia Court of Appeal

State High Court, Federal High Court, National Industrial Court

Magistrate Court

Area/Sharia/Customary Courts (peculiar to States)

3. Adjudication creates judicial precedent. Judicial precedent or case law refers to

pronouncements and decisions of superior courts of record. A decision of the supreme court
of binding on all other courts in Nigeria.
4. Every Court of first instance has some special jurisdiction granted to it by law. For e.g. Sharia
and Area courts (Islamic personal law); Customary/Area courts (customary matters); District

35 | P a g e
 courts (Recovery of premises, Monetary claims); Magistrate court (summary trial in criminal
cases); Federal High Court (administration and management of federal government agencies);
National Industrial Court of Nigeria (labour, trade and employment matters); Sharia Court of
Appeal (strictly appeals to Islamic personal law) and Customary Court of Appeal (strictly
appeals to custom and customary law), etc.

Advantages of Adjudication

1. It affords disputants a neutral body (court) and a neutral person (judge) to determine their
disputes.
2. Rules of procedures administer the process of litigation thereby ensuring certainty.
3. Fair hearing ensures that parties present their case openly hereby allowing them the
opportunity of hearing the other.

Disadvantages of Adjudication

1. Incessant adjournments of cases lead to delay in proceedings, which affects the morale of
parties and the outcome of cases.
2. Due to shortage of judges and the rise in litigation, cases pending before courts are too many.
3. Sometimes meritorious cases could be defeated based on technicalities.

NON-ADJUDICATORY METHOD OF DISPUTE RESOLUTION

Non-adjudicatory method refers to the set of methods or techniques applied in dispute resolution
outside of litigation. It is loosely called “out of court settlement.” Disputes may start with
litigation but may be settled out of court.

Due to the challenges associated with litigation like incessant adjournments, high cost of
litigation, level of literacy, legal technicalities etc, litigation leaves litigants dissatisfied,
disillusioned and disenchanted. In developing countries like Nigeria, our court systems are still
in a state of infancy and facing institutional challenges.

Due to the above, a system of dispute resolution emerged known as Alternative Dispute
Resolution (ADR). ADR refers to methods, means or techniques which are informal used to settle
disputes. It is defined as: “…means or methods and procedures used to resolve disputes either as
alternatives to the traditional dispute resolution mechanisms of the courts or in some cases as
supplementary to such mechanism”. See Orojo, J.O. & Ajomo, M.A. Law and Practice of Arbitration and
Conciliation in Nigeria (Lagos: Mbeyi and Associates Nig. Ltd. 1999) p.4.

Another source puts it thus: “ADR refers to the set of mechanisms a society utilizes to resolve disputes
without resort to costly adversarial litigations.”1 In another light, ADR is seen as, “…the means or

1
United Nations Office on Drugs and Crime Training Manual on Alternative Dispute Resolution and Restorative Justice,

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methods of resolving legal disputes or conflicts privately through the intervention of a third party other
than via litigation.”2
Akinbuwa, A.A. defines ADR as follows:
Alternative dispute resolution refers to a range of mechanism designed to assist disputing
parties in resolving their disputes without the need for formal judicial proceedings. They are
those mechanisms that are used to resolve disputes faster, fairer, and without destroying on-
going relationships.3

Similarly, ADR is stated to mean, “…those processes where the disputing parties themselves are directly
involved in the efforts towards finding a common ground or mutually acceptable solution.”4 Still on ADR,
a source states that, “Alternative Dispute Resolution (ADR) includes practices, techniques and
approaches for resolving and managing conflicts short of, or alternative to, full scale court process.”5
Suffice it to say that from the above definitions and reflections by the different authors on ADR,
the following points of convergence emerge:
ADR involves mechanisms, methods, techniques, processes or means of resolving or settling
disputes other than litigation. It is a process that is participatory in nature because parties to a
dispute are involved directly in the settlement of their differences. Furthermore ADR aims at
reaching or arriving at a position or outcome suitable to parties in a dispute after the necessary
processes have been undertaken by them.
ADR aims at dispensing with disputes in a manner which is easier, faster, fairer and beneficial to
disputants.
ADR is used to reduce the number of potential cases that may otherwise come to court or may be
used as a supplementary process to litigation where matters are filed in court.
From the several definitions of ADR, we may safely posit that ADR is a regime that is distinct
from or part of the adversarial system of justice employed upon to facilitate amicable resolution
of disputes other than by litigation. It therefore may be court-connected or may be privately
designed and resorted to by litigants. In all, ADR functions as an “alternative” to or “option” to
the conventional and traditional method of dispute resolution—litigation.

Evolution of ADR
2007, p.16. See www.unodc.org/.../Training_Manual_on_alternative_dispute_resolution_and_restorative_justice.pdf. Accessed
on 2/8.2014.
2
Course Handbook on Alternative Dispute Resolution I (LAW 517), National Open University of Nigeria, p.13. See
www.nou.eu.ng. LAW 517 Alternative Dispute Resolution I.pdf. Accessed on 2/8/2014.
3
Akinbuwa, A.A. “Citizens Mediation Center and Multi-door Courthouse in Lagos State” in “Law, Politics and Development”,
NBA Ikeja Branch, 2010, p327 in Bimbo Atilola and Michael Dugeri, “National Industrial Court of Nigeria and the Proposed
Alternative Dispute Resolution Centre: A Roadmap,” p.10. See www.nicn.gov.ng/.../ARTICLE%20ON%20ADR%20FOR
%20NIC.pdf. Accessed on 3/4/2014.
4
Aina, K. “Alternative Dispute Resolution,” in Nigerian Law and Practice Journal, Council of Legal Education, Nigerian Law
School, Vol. 2, No.1, March 1988, p.169-170, in “National Industrial Court of Nigeria and the Proposed Alternative Dispute
Resolution Centre: A Roadmap.” Ibid.
5
Alternative Dispute Resolution Practitioner’s Guide, March, 1998. Technical Publication Series, Center for Democracy and
Governance, Bureau for Global Programmes, Field Report, and Research, U.S. Agency for International Development,
Washington, D.C 20523-3100, footnotes 11-26, in Animashaun, O. “Court-Connected ADR and Industrial Conflict Resolution:
Lessons from South Africa and Guatemala.” See www.nicn.gov.ng/.../Court-Connected%20ADR%20and%20Industrial
%20Conflict%20Resolution.pdf. Accessed on 2/8/2014.
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ADR gained prominence in the U.S.A in the 1960s when the Civil Liberties Movement began.
However, it became effective and operational in the 1970s. Worthy of note is the 1976 Pound
Conference aimed at legal reforms in the U.S.A. In that conference, Prof. Frank G. Sander of
Harvard University postulated a new concept known as “Multi-door courthouse.” This concept
encouraged the use of different ADR mechanisms in the court to settle disputes. He envisaged a
court house with many doors which are to be exploited to settle disputes.

In Nigeria, the Multi-door Courthouse (MDC) was introduced in 2001 by the Negotiation and
Conflict Management Group (NCMG). Since its introduction in Nigeria, it has been replicated by
some states like the Lagos Multi-door Courthouse (LMDC) established on 11 June 2002. This was
followed by the Abuja Multi-door Courthouse (AMDC) established in October 2003. We also
have the Kano Multi-door Courthouse (KMC) established on the 20th January 2009.

Why ADR?

To buttress the need of ADR in dispute resolution, it is important to consider the delay
occasioned by litigation. The statistics are damning and sobering. The Lagos State Ministry of
Justice carried out a survey of cases completed by the Supreme Court of Nigeria between 1999
and 2005 and found out the following:6
Year Land Cases Other Civil Cases Criminal Cases
1999 13.6 Years 13.8 Years 8 Years
2000 18 Years 11.7 Years 7.3 Years
2001 19.4 Years 12.6 Years 9.9 Years
2002 21.5 Years 11.3 Years 12.2 Years
2004 16 Years 14.2 Years 9.5 Years
2005 21.7 Years 15.5 Years 12.5 Years
The report further adds that, “Taking together a total of 208 Supreme Court judgments surveyed, we
found that it took an average of: 18 Years (from year of commencement) to finalize land cases, 14 Years
(from year of commencement) to finalize other civil cases, 10 Years (from year of commencement) to finalize
criminal cases…It took an average of six years for contested cases to move from filing to judgment.”7 The
above analysis and survey led to this poser: “What is the value of a judgment that comes after
eighteen years of brilliant and robust advocacy, when some of the parties may have died or when
interest may have changed?”8 This of course is a rhetorical question.

To substantiate the above survey we refer to some examples. In Rossek & Ors v. ACBLtd. &
Ors9, the case started in 1975, an order of retrial was given after 18 years of litigation. Also, in the
popular Ogbuyinya v. Okudo10, it took 32 years before the matter was finally resolved. 11 It has

6
Ibid, p.10.
7
Ibid, p.10-11.
8
Ibid, p.11.
9
(1993) 8 NWLR (PT. 312) 382.
10
(No. 2) (1990) 4 NWLR (pt. 146) 551.
11
Bimbo Atilola and Michael Dugeri, op. cit. p.18.
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been observed that as at September 2003 in the Lagos High Court, the following cases were
pending for over 20 years in a particular Court12:
 A.J Lawal & Anor Vs. A. Santos13 -- 26 years
 S.A Abudu Vs. Alhaja T. Ogunbambi & Anor14 -- 29 years
 Sipeolu & Anor Vs. AIICO Eng. Group Nig.15 – 25 years.
Furthermore, during the same period under review (2003), the same Judge also had pending
before her (sic) about 50 cases, which were over 10 years old, and about 140 cases, which were
over 5 years old.16
The above scenario is not peculiar to Lagos State Judiciary alone. It is a familiar story throughout
the federation. This excludes cases before lower courts.
It is agreed that the most priced asset of resource to humans is time. This being the case, there is
no need for endless or uncertain litigation when ADR can solve the issues within the earliest
possible time. This affirms the urgent need of an alternative to litigation, hence the ascendency of
ADR.
It is submitted that in 1987 alone, the American Arbitration Association (AAA) handled more
than 53, 000 disputes through ADR.17 The effectiveness of ADR in saving precious time is indeed
undoubted.
Features of ADR (F.E.W.S)

F – Fairness: ADR promotes amicable resolution. It is participatory, and builds confidence and
trust.

E – Efficiency: ADR is result oriented, faster and cheaper.

W – Wisdom: ADR depends on techniques and skills.

S – Stability: ADR ensures reconciliation and the maintenance of valued relationships.

Mechanisms of ADR

There are many mechanisms of ADR. In fact, many more are still being developed to suit specific
disputes. The popular ones are negotiation, mediation, conciliation and arbitration. Others like
mini-trial, early neutral evaluation, counseling etc are not popular in Nigeria. Let us consider the
four popular ones in Nigeria.

1. Negotiation

This involves a face to face arrangement and discussion between disputing parties with the view
to settling their dispute.

Classes of Negotiation
12
Ibid, p.18-19.
13
Suit No. LD/469/77.
14
Suit No. LD/89/74.
15
Suit No. LD/4/78.
16
Bimbo Atilola and Michael Dugeri, op. cit. p.19.
17
Ibid, p.21.
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a) Dispute or transactional: This form of negotiation takes place to settle parties in a dispute.

b) Futuristic negotiation: This involves putting measures for future disputes.

Approaches to negotiation

a) Adversarial approach: This approach centres on the conflict, rights of parties, without
considering solutions. This approach usually defeats negotiation.

b) Problem solving approach: This approach goes beyond rights of parties and focuses on
available options and opportunities for settlement. It is popularly called “win-win”
approach.

2. Mediation

This involves the incorporation of a neutral third party by the parties in order to resolve their
disputes. The third party is called a mediator. It is also called “Assisted Negotiation.”

Classes of Mediation

a) Rights–based mediation: This form of mediation is one where parties arrive at a decision
based on the likely outcome in adjudication.

b) Interest-based: This involves allowing parties discover the reality of their interests and
ways of reaching settlements.

3. Conciliation

It is an ADR method where disputing parties invite either a neutral third party or neutral third
parties to assist them in resolving their disputes. Unlike negotiation and mediation, conciliation is
regulated by the Arbitration and Conciliation Act, Cap A18 LFN 2004. In conciliation parties
submit themselves to conciliation in a formal procedure. At the end of conciliation, the result or
outcome is presented to the disputing parties for their consent.

The Arbitration and Conciliation Act provides for how conciliation is initiated or commenced,
procedure of hearing parties, discussions and exchanges, distillation of issues and submission of
results/outcome.

4. Arbitration

This involves the invitation of a third party to assist disputing parties reach settlement. This is the
most formalized form of ADR. It is also governed by the Arbitration and Conciliation Act.

Arbitration starts when parties agree to arbitrate. Parties present their respective cases with
supporting documents and they are allowed to call witnesses. Witnesses in arbitration may be
summoned. The assigned arbitrators are expected to be THREE in number. Where the parties fail
to appoint arbitrator, the court appoints them. Where the court appoints them, parties are

40 | P a g e
expected to submit to them. Where two arbitrators are appointed either by parties or by the court,
the two arbitrators so appointed will appoint a third arbitrator. In the event the two arbitrators
appointed refuse to appoint a third arbitrator, the court will do so.

Arbitration usually arises in civil transactions where an arbitration clause is inserted in the
transaction document. An arbitration clause has the effect of ousting the jurisdiction of a court
until the arbitration is resorted to. After the completion of arbitral proceedings, the arbitrators
issue an outcome known as an arbitral award.

An arbitral award is enforceable against the parties except where it was procured through fraud,
mistake, misrepresentation, dishonesty by any of the arbitrators etc. An arbitral award may be set
aside within thirty days of its pronouncement upon the application of any party.

Procedures of Arbitration

1. Agreement to arbitrate.
2. Composition of arbitration panel.
3. Presentation of cases by parties.
4. Assessment of cases presented by parties. The Arbitration panel may invite experts to testify
and considers documents.
5. Pronouncement of an arbitral award.
6. Enforcement of arbitral award or application to set aside the award.

NOTE

Arbitration may be substantive or procedural. It is substantive where a subject matter in a

dispute requires arbitration. It is procedural where it is employed in the course of a law suit.

Merits of ADR

1. It saves time and resources.

2. It restores and maintains the relationship of disputants.
3. It is participatory and the parties own the process.

Demerits of ADR

1. With the exception of arbitration, the outcome/result of other forms of ADR is not binding.
2. ADR does not address public policy since it majors more on individual rights and interest.
3. Delay in ADR mechanisms like negotiation, mediation or conciliation may affect and defeat a
party’s right of action. See Kolawole Ind. Ltd. V.A.G. of the Federation (2012) 14 NWLR (Pt. 1320)
221, where the Supreme Court held that, “ignorance of limitation of time or time taken in
negotiation between parties are no defences to limitation of action.”

41 | P a g e
Other ADR mechanisms include: Early Neutral Evaluation (ENE), Mini Trial, Expert
Determination, Mediation-Arbitration (Med-Arb), Arbitration-Mediation (Arb-Med) and Fact-
Finding. It is noted that ADR has come to stay in dispute resolution mechanisms in Nigeria. It is
expressly provided for in the Procedural Rules of Courts in Nigeria like the Federal High Court
(Civil Procedure) Rules, 2018, the Lagos State High Court (Civil Procedure) Rules, 2019 and the
National Industrial Court Rules, 2017. The National Industrial Court of Nigeria (NICN) is ahead
of other Courts in Nigeria in the entrenchment of ADR culture with the National Industrial Court
Alternative Dispute Resolution Centre Instrument 2015 and the National Industrial Court
Alternative Dispute Resolution Centre Rules 2015. The NICN is the only Court in Nigeria to
operate an ADR Centre.

Comparism between adjudicatory and non-adjudicatory method of dispute resolution

1. Adjudicatory method involves fact finding which is formalized while non-adjudicatory

method involves informal means of dispute settlement.
2. In adjudicatory method, a decision is made based on right or wrong as facts are assessed but
under non-adjudicatory method, outcomes/results are not based entirely on fact assessed.
3. While non-adjudicatory method does not generally involve formalized procedure (except
arbitration), adjudicatory method relies heavily on procedure.
4. Non-adjudicatory method involves other persons or officers like neutral mediators,
conciliators and arbitrators whereas adjudicatory method features a dominant official in the
person of a judge.

METHODS OF FACT-FINDING

Fact-finding is the process used by a judge to discover facts which led to a dispute and to resolve
the dispute. Fact-finding operates under the adjudicatory method of dispute resolution. A judge
considers facts in the form of evidence led by parties in support of their respective cases. There
are two types of fact-finding methods: adversarial and inquisitorial.

ADVERSARIAL METHOD

Adversarial method is taken from the word ‘adversary’ which connotes an opponent-like contest.
This method of fact finding, affords parties and their counsel the liberty and opportunity to
present their cases in a manner where they control proceedings. Parties or their counsel present
their cases by adducing evidence in the form of oral, documentary or real evidence.

Features of Adversarial Method

i. The judge plays a dominant role.

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 ii. This method involves contentious procedures.
iii. The parties or their counsel have greater control of proceedings.

Merits of Adversarial Method

1. Because of procedure used by the adversarial method, there is certainty and order in the
course of proceedings.
2. The presence of the judge as an independent umpire reduces the tendency of bias.
3. This method allows a weaker party the opportunity of presenting his case is a manner
considered best to him.

Demerits of Adversarial Method

1. This method promotes the “sporting theory.” The sporting theory states that in a contentious
case, the party with an experienced lawyer or with financial advantage eventually emerges
the winner.
2. This method is defeated by delay in arriving at a decision by the court.
3. A legal system like Nigeria’s faces the challenges of insufficient man power and facilities
required for the adversarial method.

INQUISITORIAL METHOD

This method employs a system of inquiry or investigation. Under this method, the judge
functions as the decision maker. The parties or their counsel play a secondary role. The judge
leads the court proceedings by asking, questioning, investigating or demanding answers from
litigants. This method is one in which the judge actively participates in the court proceedings
leading to a decision.

Features of Inquisitorial Method

1. The judge plays a dominant role not as an independent umpire but as an active participant.
2. The role of parties or their counsel is limited to providing information and answers.
3. Trials under this system are conducted by inquiries, inquisitions and investigations.

Merits of the Inquisitorial Method

1. The likelihood of undue influence from lawyers is reduced because the judge takes charge of
proceedings while the parties or their counsel provide information.
2. This system is less expensive than the adversarial system.
3. It ensures speedy and faster determination of cases.

Demerits of the Inquisitorial Method

1. The judge is likely to descend into the arena and make a case for either party.

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2. The parties or their counsel have limited roles to perform.
3. Justice is usually sacrificed on the altar of speed or in a quest for the early determination of
cases.

NOTE:

1. The inquisitorial method was developed by the French and practiced mainly in
francophone countries. This method requires an accused person to establish his innocence.
2. The adversarial method was developed in England and is practiced mainly in Anglophone
countries e.g. Nigeria. Thus the presumption of an accused person’s guilt until otherwise
proven. See section 36(5) 1999 Constitution.
3. The adversarial method provides that, in civil matters, judgment or a decision of a court is
based on balance of probability or preponderance of evidence. The latter is achieved when
a court weighs the quality and substance of evidence adduced by parties.
4. Under the adversarial method, criminal cases are decided when the guilt of an accused is
proved beyond reasonable doubt.

ONLINE DISPUTE RESOLUTION (ODR)

Online dispute resolution (ODR) is a product of globalization. It is a 21 st century phenomenon. It

is driven by information, communication technology (ICT). The growth of ICT and the rise of
globalization have made the world and trade easier. In the course of globalization, transactions
are now trans-border. Disputes arise from such trans-border transactions.
The world has now received and is moving towards e-commerce (electronic commerce) and m-
commerce (mobile commerce). E-commerce and m-commerce are assisted by electronic devices
and gadgets like mobile and smart phones, tablets, PCs, emails, video conferencing, web chats
e.t.c.
ODR therefore seeks to provide platforms upon which online and off-line disputes arising from
transactions may be resolved.

Definition
ODR does not have a single acceptable definition. However, some writers in this field have stated
that ODR is technology-assisted dispute resolution mechanism. Others see it as technology-
facilitated means of dispute resolution. It has been defined as: “…as a process where legal disputes
are resolved via web based systems…18”
It is commonly held by the authorities in the field of ODR that technology is a ‘fourth’ party in
dispute resolution: the two parties being the disputants and the third being the

18
Babalola, A. “Repositioning Legal Education for National Development”, being the text of a lecture delivered at the Annual
Conference of the Nigeria Law Teachers Association (NALT), University of Ibadan, on 1 st July, 2019.
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In a nutshell, ODR is a dispute resolution mechanism which is centered on the application of
technology in solving disputes.
ODR essential operates via artificial intelligence (AI). AI facilitates numerous human activities,
with great degree of certainty and exactitude. Web systems employ AI to enable them achieve
their set goals. In the case of ODR, service providers use AI to facilitate the resolution of disputes.

Forms of ODR
ODR takes the following forms: e-mediation, e-arbitration, modified jury system etc. However,
the most popular are e-negotiation and e-mediation.

E- Negotiation
This is the use of an electronic platform where disputing parties hold settlement sessions on a
one-on-one basis through the use of electronic gadgets. For example, discussions through e-mails,
skype, video conferencing, web chat etc. The negotiation process is automated.

E-Mediation
This involves a third party brought into the disputing scenario to facilitate settlement. This
method also involves automation.
Examples of ODR websites: Cyber settle, settlement Online, ClickNsettle, One Accord,
SquareTrade and Web Mediate.

Simple ODR Procedure

1. An aggrieved party initiates a claim by logging unto any ODR website.
2. A settlement deadline is prescribed for example 30-60 days.
3. Service of a claim on the other party is effected through e-mail.
4. The other party accesses the website to view the claim to respond.
5. The second party may either accept or decline settlement.
6. Where the second party accepts settlement, he enters his own part of the claim on the
website.
7. The claims of the parties are automatically compared by software specially designed for
that purpose.
8. The software presents a report on the chances of settlement.
9. Where parties agree to settle, they indicate on the websites. Where however, they fail to
settle, the process of settlement is declared to have failed.
NOTE
Where the time prescribed for settlement elapses, the website automatically logs out. Parties may
still enter multiple entries even after the system logs out. Like ADR mechanisms, the outcome or
results of ADR are not binding.
Merits of ODR
1. It saves costs and promotes convenience.
2. Complex jurisdictional issues are avoided.

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3. Parties control the process.
Demerits of ODR
1. Like ADR, the outcomes of ODR are not binding.
2. In Nigeria, internet penetration and access is minimal.
3. Face to face or mediation panel are denied parties. In practice, it has been found out that
face to face encounters or a mediation panel allows parties freedom to express their
grievances.

PROSPECTS
ODR has the capacity to lead to amicable dispute resolution if properly harnessed. As ICT and
globalization takes center stage and e-commerce grows, the forms of ODR will continue to
develop. Developed countries like USA, UK, Germany, Canada, etc, are shifting attention to
ODR. Worthy of mention is the Netherlands experience with ODR. The Dutch government
pioneered the use of ODR with a dedicated website called Rechtwiger.nl. The latter means:
signposts to justice or roadmap to justice. It was launched in 2014 to facilitate resolution of
divorce related issues and with its success, in 2015; it was extended to cover landlord-tenant,
consumer conflicts and employment issues.19 This shows the efficacy of ODR in today’s world.

In Nigeria, e-commerce is gaining ground with the introduction of e-commerce companies like
Jumia, OLX, Konga, Jiji e.t.c. It is therefore only wise and strategic to develop the necessary
capacities needed to explore the abundant potentials in ODR. For us to achieve this feat, the
nation must strive towards the expansion of critical ICT infrastructure (like bandwidths, fibre
optic cables, wifi etc), robust internet connectivity and recognition of e-commerce as a modern
business system.

19
Ibid.
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