DISTANCE LEARNING INSTITUTE

UNIVERSITY OF LAGOS
AKOKA YABA
 STUDY GUIDE

INTRODUCTION TO LAW
JIL 111
© Distance Learning Institute, University of Lagos. 2019

All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted in any form or by any means, electronic, mechanical,
photocopying, recording or otherwise, without the prior permission of the copyright
owner.

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 COURSE CODE:
JIL 111

COURSE TITLE:
INTRODUCTION TO LAW

COURSE WRITERS:
Dr. Olubukola Olugasa
Dr. Phillip A. Folarin

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 ABOUT THIS COURSE MODULE
This course module on Introduction to Law (JIL 111) has been produced by Distance
Learning Institute, University of Lagos and structured as outlined below.
How this Module is structured

The course overviews

The course overview gives you a general introduction to the course. Information
contained in the course overview will help you determine:
▪ If the course is suitable for you.
▪ What you will already need to know.
▪ What you can expect from the course.
▪ How much time you will need to invest to complete the course.
The overview also provides guidance on:
▪ Study skills.
▪ Where to get help.
▪ Course assessments and assignments.
▪ Activity icons.
▪ Study sessions.
We strongly recommend that you read the overview carefully before starting your
study.

The course contents

The course is broken down into study sessions. Each study session comprises of:
▪ An introduction to the study session contents.
▪ Learning outcomes.
▪ Contents of study sessions.
▪ A study session summary.
▪ Assessments and/or assignment, as applicable.

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Your comments
After completing this course, Introduction to Law (JIL 111), we would appreciate it if
you would take a few moments to give us your feedback on any aspect of this course.
Your feedback might include comments on:
▪ Course contents and structures.
▪ Course reading materials and Learning resources.
▪ Course assessments.
▪ Course assignments.
▪ Course duration.
▪ Course support (assigned E-tutors, technical help, etc).
▪ Your general experience with the course provision as a distance learning student.
Your constructive feedback will help us to improve and enhance this course.

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Course overview
Welcome
This course Introduction to Law (JIL 111) provides you with basic and understanding of
law and on how it operates in the Nigerian legal system. It covers ten broad topics which
provide a non-law student with the knowledge and the know-how of how to find and apply
law in your professional career and life generally. There are ten (10) study sessions in all.
Study Session one covers introduction to the concept of law, the types, its classifications
and functions in society. Study Session two explains the sources of law in Nigeria,
highlighting each of them to afford the student sufficient basic knowledge of where and
how to locate laws relevant to their areas of work. Study Session three provides discusses
the court system in Nigeria, their respective jurisdictions and how the courts are constituted.
It also highlights the hierarchy of courts. Study Session four covers the adjudicatory models
of the courts especially the interpretation methods through literal, golden and mischief rules
of interpretation. Study Session five explicitly outlines and fairly discusses criminal
procedure and civil procedure in courts through litigation. It also mentioned modern
alternative means of dispute settlement apart from litigation. Study Session six

Course Learning Outcomes

Upon successful completion of JIL 111, Introduction to Law, you will be able to:
▪ explain law in basic terms;
▪ identify legal issues in their disciplines;
▪ apply the basic principles of law as guide in their navigating the disciplines
they belong to.

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Unit Topics
1.0 Study Session 1
1.0 The Concept of Law
Learning Outcomes for Study Session 1
1.1 Definition of Law
1.2 Functions of Law
1.3 Types of Law
1.4 Classifications of Law
1.5 Law in technology driven ecosystem
Summary of Study Session 1
Self-Assessment Questions (SAQ)

2.0 Study Session 2

2.0 Sources of Laws in Nigeria
Learning Outcomes for Study Session 2
2.1 The Constitution and Nigerian Legislation
2.2 Customary Laws
2.3 The Received Laws
2.4 Judicial Precedents
2.5 International Instruments and Texts of Legal Authorities
Summary of Study Session 2
Self-Assessment Questions (SAQ)

3.0 Study Session 3

3.0 Court System in Nigeria
Learning Outcomes for Study Session 3
3.1 Classification of Courts
3.2 Hierarchy of Courts
3.3 Jurisdictions of Courts
3.4 Doctrine of Stare Desicis
3.5 Experimental Design
Summary of Study Session 3
Self-Assessment Questions (SAQ)

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4.0 Study Session 4
4.0 Interpretation of Statutes
Learning Outcomes for Study Session 4
4.1 Literal Rule
4.2 Golden Rule
4.3 Mischief Rule
4.4 Ejusdem Generis Rule
4.5 Ratio Decidendi and Obiter Dicta
Summary of Study Session 4
References
Self-Assessment Questions (SAQ)

5.0 Study Session 5

5.0 Research Instruments
Learning Outcomes for Study Session 5
5.1 Classification of Offences and Who to Enforces
5.2 Procedure from Arrest, Investigation, Prosecution and
Trial
5.3 Classification of Civil Wrongs
5.4 Procedure of Civil Litigation
5.5 Arbitration, Mediation and Conciliation
Summary of Study Session 5
Self-Assessment Questions (SAQ)

6.0 Study Session 6

6.0 Commercial Law
Learning Outcomes for Study Session 6
6.1 Law of Contract
6.2 Law of Agency
6.3 Sale of Goods Law
6.4 Hire Purchase Law

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6.5 Industrial Law
Summary of Study Session 6
Self-Assessment Questions (SAQ)

7.0 Study Session 7

7.0 Public Law
Learning Outcomes for Study Session 7
7.1 Constitutional Law
7.2 Administrative Law
7.3 Law of Evidence
7.4 Law of Taxation
7.5 Public Officers Protection Law
Summary of Study Session 7
Self-Assessment Questions (SAQ)

8.0 Study Session 8

8.0 Private Law
Learning Outcomes for Study Session 8
8.1 Law of Torts
8.2 Family Law
8.3 Land Law
8.4 Equity & Trusts
8.5 Wills & Administration of Estate Laws
Summary of Study Session 8
Self-Assessment Questions (SAQ)

9.0 Study Session 9

9.0 International Law and Others
Learning Outcomes for Study Session 9

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9.1 International Law
9.2 Energy Law
9.3 Admiralty Law
9.4 Environmental Law
9.5 Health Policy and Law
Summary of Study Session 9
Self-Assessment Questions (SAQ)

10.0 Study Session 10

10.0 Public/Economic Regulatory Bodies
Learning Outcomes for Study Session 10
10.1 Code of Conduct Bureau
10.2 Public Service Commission
10.3 Independent Corrupt Practices Commission
10.4 Economic and Financial Crime Commission
10.5 Judicial Service Commission
Summary of Study Session 10
Self-Assessment Questions (SAQ)

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 Timeframe
This is a sessional and 2 units course.
45 hours of formal study time is required.

How long?

Study skills
As an adult learner your approach to learning will be different to that
from your school days: you will choose what you want to study, you
will have professional and/or personal motivation for doing so and
you will most likely be fitting your study activities around other
professional or domestic responsibilities.
Essentially, you will be taking control of your learning environment.
As a consequence, you will need to consider performance issues
related to time management, goal setting, stress management, etc.
Perhaps you will also need to reacquaint yourself in areas such as
essay planning, coping with exams and using the web as a learning
resource.
Your most significant considerations will be time and space i.e. the
time you dedicate to your learning and the environment in which you
engage in that learning.
We recommend that you take time now before starting your self-
study to familiarize yourself with these issues. There are a number
of excellent web links & resources on the Course CD and Learning
Management System (LMS). Go to “Self-Study Skills” menu in
course CD.

Need help?
As earlier noted, this course Module complements and supplements
JIL 111 as an online course.

You may contact any of the following units for information,

Help learning resources and library services.

Deputy Director (M&C)

Distance Learning Institute

University of Lagos

For technical issues (computer problems, web access, and etc),

please send mail to …………..

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 Academic Support

A course facilitator is commissioned for this course. You have also been
assigned an E-tutor to provide learning support. The contacts of your
course facilitator and E-tutor for this course are available at your
Help Departmental office.

Contact Details
Office: DLI Building Room TO81
Office Hours: 8.00am – 6pm Monday - Friday
email: [email protected], [email protected]
Telephone: 08023338664

This study guide and the module text are the key material for studying the
relevant chapters. Each topic provides you with a 'road map' to guide you
through the module. The textbook readings will be supplemented by
lecture notes. You are also expected to attempt the online activities on the
Learning Management System as they will deepen your understanding of
the individual topics. Online discussions and collaborations are additional
vital parts of the learning support tools. They give you the opportunity to
express your understanding and application of the topics under discussion
in practice. Furthermore, you benefit from the experiences and insights of
your peers challenging their own perspectives and actions.

There is availability of other useful sources such as numerous websites

which are appropriate for this course. The following list is by no means
exhaustive but should be explored:

http://www.skills4study.com
http://www.ucd.ie/adulted/currentstudents/studyskillsguide/
http://www.enchantedleraning.com

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 Activities
This manual features “Activities”, which may present material that
is NOT extensively covered in the Study Sessions. You will be
provided with answers to every activity question. Therefore, your
Activities
emphasis when working the activities should be on understanding
your answers. It is more important that you understand why every
answer is correct.
There are different forms of activities in this manual, ranging from
reading activities, case studies, discussion activities. The use of
activities is particularly based on learning outcomes and nature of
content. Some Study Sessions comes with discussion topics. You
may discuss the Study Sessions at respective discussion boards on
course website.
You may see dates for active discussion with E-tutor on course
schedule. This course schedule is available on the course website.

Evaluation
At the end of the session, you will be asked to provide feedback on
this module through an online evaluation that will be sent to your
email account. The gathering of such feedback is an important part
of our quality assurance and accreditation processes and I would
encourage you to complete these evaluations.

Reference
For those interested in learning more on this subject, we
provide you with a list of additional resources at the start of
this STUDY GUIDE; these may be books, articles or
Reading websites.

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 GETTING AROUND THIS COURSE

Margin icons
While working through this STUDY GUIDE you will notice the frequent use of margin icons.
These icons serve to “signpost” a particular piece of text, a new task or change in activity; they
have been included to help you to find your way around this course Module.

A complete icon set is shown below. We suggest that you familiarize yourself with the icons
and their meaning before starting your study.

Activity IAG In-text In-text Answers

Questions

Experiments Group Activity Help Learning Outcomes

E-tutor Introduction Reading Study skills

Summary Key words Time Figure

Calculation Charts and Tables

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 STUDY SESSION 1

THE CONCEPT OF LAW

Introduction
This course is meant to introduce law to students of other disciplines. It is not meant to make
them lawyers but to have ample understanding of law sufficient to help them navigate the basic
principles and procedures of law.
The discussion shall relate the operations of law within the context of the traditional ecosystem.
By traditional ecosystem is meant the usual manner of doing things in society which are by
physical and manual means. Having described the traditional ecosystem attempt shall be made
to describe the new ecosystem emerging in the entire world of globalization and how law
operates in the new ecosystem. It is the concept of law in the technology driven ecosystem.

Learning Outcomes for Study Session 1

1. At the end of this study session, the learner should be able to explain the concept of law
2. At the end of this study session, the learner should be able to discuss function of law in
human society, the types and classifications of law in Nigeria.
3. The learner should be able to describe of how law operates in society.

Definition of Law

Law like other concepts cannot be defined. It can only at best be described. Attempts by
different scholars to define it only ends up in stating part of its description. Being a concept its
entire features cannot be captured in simple terms.1 Hoebel (1979:18) compared the quest to
define law as “searching for the Holy Grail.” His comment underscores the difficulty involved
in defining such a complex concept as law. There is law of science which deals with scientific
principles. There is law of nature which is close to law of science; it entails the consistent
occurrences in nature such as day and night, rainy and harmattan seasons, etc.

1
Hadfield, Gillian K., and Barry R. Weingast. 2012. “What Is Law? A Coordination Model of the
Characteristics of Legal Order.” Journal of Legal Analysis 4:471–514.

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In defining law therefore a number of schools of thoughts have been identified. They are
classified according to the similarity in the overall perspectives taken by them in describing
law. In this context we are concerned about law in relation to human society. The positivist
school of thought based on John Austin’s command theory describes law as any rules and
regulation made by the state/power in place in society (legal positivism). It does not really
matter whether the law is obnoxious or not. Once made it must be obeyed. And remains law
until it is repealed. A typical description of law by the positivists says laws are rules and
regulations made by the sovereign for the regulation of human conduct in a given society, in
order to promote or enforce peace and tranquility, and such law is backed by sanction to enforce
obedience. The challenge of the description by the positivist school is that reason and
acceptance of the content of the laws are not of importance to them. Once issued, it must be
obeyed. So in such context slavery may be law and as such recognized or that women cannot
own property or some persons can be denied rights on the basis of being member of a cast
system.

The naturalist school of thought alongside the argument of Thomas Hobbes describes law as
the rules and regulations that bind a society but which must flow from the morality of the people
who made them and for whom they are made (legal naturalism). According to Oppenheim,
"We may then say that law is a body of rules for human conduct within a community which by
common consent of this community shall be enforced by external power.” The school attributes
law to the morality of the people for whom the laws are made. The issue of obedience is
therefore easier since the people’s moral values and persuasions found the laws. The challenge
of this description lies in the fact that morality may be nebulous and difficult to measure. In
that case there may arise the problem of excusing oneself from liabilities where relative
morality becomes the issue. One advantage of this school’s position however is that slavery is
never acceptable, obnoxious laws will be no law; ownership of property cannot be withheld
from any human, etc.

An amalgamation of legal positivism theory and legal naturalism theory has been described as
the ideal law in society. This means that the ideal law in society would be a balance mix of law
and morality. This can be demonstrated in the diagram below:

Law Law Morals

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Another school to which Ronald Dworkin and Oliver Wendell Holmes belong is the realist
school of thought. This school describes law through what it does in action. According to
Holmes, laws are “the prophesies of what the courts will do in fact and nothing more
pretentious, are what I meant by law.” In other words, law is what the court pronounces it to
be. Law in the statute books or gazettes etc., will be no law unless it is so interpreted by the
court (legal realism). So, interpretation of a law by the court is what constitutes law indeed.
The challenge with this description is that it suggests laws in books will in reality not deemed
law; only the interpretation of the court will.

There is also the sociological school of thought to which Roscoe Pound, Weber and Durkheim
belong that describes law as it operates in society (sociological legal theory). It considers law
as a social phenomenon. Law here concerns how it emerges in society and how it operates in
the society of the people it governs and its effect on them. The school is concerned with how
law changes the society and advances it.

1. ……………… compared the quest to define law as “searching for the Holy Grail”
(a)Hoebel (b) Aguda (c) Holmes (d) Roscoe Pound
2. The major flaw in the description of law by the Positivists School of Thoughts is that
the reason and acceptance of the content of the law are not relevant (a) true (b) false
3. According to the Naturalist School of Thoughts, law as rules and regulations emanate
from ……………of the people (a)religion (b) traditions (c) morality (d) intentions
4. ………………… School of Thoughts describes law through what it does in action (a)
religionist (b)naturalist (c) positivist (d) realist

1. (a) Hoebel
2. (a) true
3. (c) morality
4. (d) realist

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1.2 Function of Law
The functions of law include how law operates in the society it regulates. A number of functions
of law have been mentioned one way or the other in the process of describing law above. For
the sake of direct reference and simple explanation we shall distil them as follows;
a) Law for Social Change: Law functions as instrument for promoting peace and order in
society. You would recall that the positive law emphasizes the command aspect of law.
That is meant to enforce conformity to the law in order to prevent an individual from
exceeding the rule of law thereby maintaining balance of relationship between the
persons in society.

b) Law for Social Control: Law shapes the morals and values of the society. It does so by
securing desirable behavior or conduct from the citizens and preventing the undesirable
conducts. Through law human conducts which are approved by the state and those not
approved are made known to the people. There are two major categories of law that are
directly geared towards social control. They are criminal law against wrongs considered
as offending the state; and tort against wrongs considered as offending individuals. We
shall discuss them in further details under classification of laws.

c) Law for Justice: Law brings about equality amongst persons in the society and protects
the persons against state oppression or suppression. It promotes freedom and fairness
and prevents a state of anarchy which Thomas Hobbes described as ‘might is right.’
Hobbes explains law in society as a social contract whereby equal rights are apportioned
to the citizens no matter the weakness or strength of the persons (discriminatory
justice). By so doing the citizens have equal access to the resources (commonwealth)
of the state (distributive justice). Law ensures individuals in similar conditions are
treated equally (comparative justice). Where a wrong has been done to a citizen the law
provides the means for remedy for the wrong to prevent reoccurrence of same
(retributive justice). Similarly, the person who has been wronged is compensated by
law through restorative justice. Also, law ensures that decisions of the state that affect
the individual citizens and the people generally are reached through fair process
(procedural justice).

d) Law for Social Re-engineering: One major function of law similar to its function as
social control is instrumentality in the quest for reshaping the standards of the people.
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 This involves modifications of hitherto held values of the people. A good example of
the utilization of law for social re-engineering is the enactment of laws towards meeting
the social needs for new ways of doing things during and after the Covid-19 pandemic.
Laws are being made to restrict hitherto recognized freedoms and entrenching new
models of doing things through social distancing.

e) Law for Economic and Business Regulation: In the process of interactions between
individuals and states certain commercial relationships emerge. These commercial
relationships require regulation in furtherance to ensuring justice for all. The law is
there to make sure that no individual is disadvantaged in such relationship and that
economic and business activities go smoothly without persons involved being cheated
or unduly affected.

1.3 Types of Laws

Types of law must be distinguished from classification of laws. By types of law in this context
is meant the varieties of laws based on origins and varieties according to types adopted by
different states or nations. It should be noted however that the types exist mainly in their
procedural quests for justice but ultimately they all seek the universal and substantial justice.
a) Divine law: The laws we have today have been traced to divine origin. Divine law
constitutes commands of God imposed on human beings in society. They are
alternatively referred to as eternal law or natural law. They are of religious background
and beliefs. For instance the Mosaic laws are found in the Holy Bible and the Holy
Qu’ran and other holy books and unwritten sources, such as the traditional religions,
such as Ifa divinations, etc. These laws are by extension natural laws, i.e., norms, morals
and values of the people. The earliest modern type of laws traceable to divine law is the
Code of Hammurabi

b) Law of Nature: Sometimes linked to divine law, law of nature consists in the universal
arrangement of time and seasons. These arrangement naturally compel the humans
within the ecosystem to obey them and where they do not certain consequences follow.
The sun rises and sets within given times. They therefore set the clocks of life activities
for men and even animals which have to adapt to the system. Men sleep at night and
work in the day; there is time to work and time to rest, otherwise the person breaks
down. The universe is set divinely, according to Thomas Aquinas, to work within the
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 confines of nature’s programmed laws. Science also takes cues of scientific laws from
the laws of nature. The law of gravitation is an example of such.

c) Civil Law: There are two major types of laws established by humans and traceable in
some elements to divine laws. Civil law is one of them. Where a country does not adopt
either of the two it usually turns out that the combination of both are adopted, except
where the state purely uses its customary laws. Civil is said to be the law practised in
about 60% of world legal systems.2 Civil law is also known as Romano-Germanic law
or Continental legal system. Written laws (statutes) are fundamental to civil law
jurisdictions. The reason is that they rely heavily on precedents. Statutes and other legal
codes are constantly updated. They are not easily subjected to court amendment since
the codes determine what could go to court or not and how the court determines the
cases and the interpretation. All the court in a civil jurisdiction does is to find and
establish facts of a case and apply the codified laws without more. Hence, there is a
limitation to the extent of discretionary input by the judge. The implication is that the
legislature and legal authorities by the laws codified wield more influence in the legal
system over and above the judges unlike what obtains in a common law jurisdiction,
which shall be discussed next.

d) Common Law: The English jurisdiction developed the common law system after the
Norman conquest of 1066. The King in order to harmonise the different customary laws
of the various counties and local areas and for the purpose of easier administration
appointed itinerant judges to adjudicate over all disputes across the borders of England.
The itinerant judges in the process developed precedents of writ forms for court access
and procedures and precedent judgments to be applied across the entire jurisdiction
whether in tandem with the customary laws of the local people or not. So the itinerant
judges developed what today is known as judge-made-laws. These case precedents
rather than written laws (codes or statutes) as in civil law jurisdictions became the laws
applicable across England. In the legal system the court wields so much power that they
could interpret any law as deemed appropriate and request the Parliament to amend
accordingly. The challenge with the common law system was its rigidity and harshness.
It got to the extent that the court refused to issue new writs in order to minimize

2
https://www.law.lsu.edu/clo/civil-law-online/what-is-the-civil-law/ accessed 20 June 2020

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 opportunities for the people to access court for litigation over their grievances. Upon
incessant complaints by the people to the King, He appointed the Bishop as the head of
a new court to be administered by the Bishop and his men. The Bishop therefore
appointed laymen as judges. These judges were unschooled in law but used cannon
laws and doctrines to adjudicate on matters. The court presided at by these ecclesiastical
laymen was name court of equity. The doctrines developed from the scriptures made
reasoning and conscience the central procedure for adjudicating. Equity originally
competed with common law by providing substantial justice above the common law
justice by procedure and evidence. But after the enactment of the Judicature Act both
common law and equity courts were brought under the same court and made to
complement each other with the Act providing that where there is a conflict between
common law and equity, equity shall prevail. So, common law no longer operates solely
but with equity, hence called common law and doctrines of equity. That is what Nigeria
inherited from the British Colonial regimes.

e) Conventional law: In strict terms, conventional laws are not laws made in the manner
of enactments or court pronouncements. They are laws that emerge from mutual
agreements between individuals, organisations and sometimes countries and after
constant practice of the manner of relationship for some time become more or less the
norm and eventually binding laws. Usually, until the court pronounces on the
conventional practice it may not formally become a law.

f) Customary Law: Rules of customs are norms, morals, values, and cultural practices of
indigenous people which become acceptable and made the standard of behavior in the
given society. The rules of practice become obligatory rules of conduct even though
they are usually unwritten. They are preserved by oral transmission and practice from
generation to generation. Examples are customary laws in Nigeria’s over 350 ethnic
groups, customary laws of other African countries, the customary laws in England that
predated common law and equity, Aboriginal customary laws in Australia and Canada,
etc. Customary laws are not distinguished from the religious beliefs of the people. They
form part of both the cultural and religious ways of life of the indigenous peoples. The
people are all schooled in the laws right from childhood and unlike formal laws like
statutes and codes, they are not institutionalized through formal sectors. Every
individual in the society grows in it and increases in experience of the system. In Sokwo
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 v. Kpongbo (2008) Vol. 4 M.J.S.C 130 at 156 paras. B-C the Supreme Court of Nigeria
held that "Customary Law is a question of fact to be proved by evidence. The onus is
on the party alleging the existence of a particular custom. He must call credible
evidence to establish the existence. Although, it is also settled that where a custom has
been sufficiently decided upon by the Court, judicial notice of the same can be taken
and the Court will not require further proof of the same custom. See Section 14 of the
Evidence Act and see also Agbai v. Okagbue (1991) 9-10 SCNJ 49." Per Chukwumah
Eneli JSC. Similarly in Nsirim v. Nsirim (2002) LPELR-8060(SC) the Supreme Court
reiterated thus: "The point must be made that native law and custom, otherwise also
referred to as customary law, are matters of evidence on the facts presented before the
court and must therefore be proved in any particular case unless, of course, they are of
such notoriety and have been so frequently followed or applied by the courts that
judicial notice thereof would be taken without evidence required in proof." Per Iguh
J.S.C. (P.17, paras. D-F).

1. Which of the following is not a function of law? (a) justice (b)social change (c) social
control (d) social damage
2. Which of the following is not a type of law? (a) divine law (b) natural law (c)
uncommon law (d) customary law
3. ………………. law deals with mutual agreements between organisations and countries
(a)customary (b) contract (c) civil (d) conventional
4. …………… law entails rules and regulation emanating from God imposed on humans
and societies. (a) natural (b) divine (c) civil (d) unnatural

1. (d) social damage

2. (c) uncommon law
3. (d) conventional
4. (b) divine

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1.4 Classifications of Law
Laws are classified into different sections for easy practice and procedure and teaching and
learning. The focus of this module is limited to classifications of law under the received laws
Nigeria inherited from the British Colonialists. The classifications are Criminal Law versus
Civil Law, on one hand, and Public versus Private Law, on the other hand. According to
Glanville Williams’s Learning the Law the classifications of law, particularly between criminal
law and civil law is arbitrary. It should be noted that civil law in this context is different from
the type of law in Continental Europe called Civil Law. Civil law under the classification of
laws has to do with laws relating to individuals otherwise private laws.

1.4.1 Criminal Law and Civil Law Classification

As earlier stated, the classification of law into criminal and civil is arbitrary according to
Glanville Williams. That means the classification is not quite on the basis of clear distinction
but of artificial procedure. They are distinguished by the terms used for them and the
procedures of court allotted to each of them. For instance, both contraventions of criminal and
civil laws are wrongs but for the purpose of classification the wrongs are distinguished as
crime/offence for criminal and civil wrong or infringement for civil laws. Also, the evidential
standard of proof between criminal and civil law is different.
a) Criminal law: The state for the purpose of ensuring that certain wrongs committed by
citizens in society against another person classify those wrongs considered serious as
crimes or offences. The ultimate goal of criminal law is to punish to deter. The state
becomes the vicarious victim for the true victim who is relieved of the cost of
prosecution to be borne by the state. The true victim merely comes to court as witness.
That is the reason why you have cases in criminal law identified as
- The State v. Ololo
- R v Roku
- DPP v Shaw
- Commissioner of Police v Ali
- IGP v Dodo

The state wants to ensure that a crime does not go unpunished. Because a major
constraint to a true victim from prosecuting a criminal case may be cost of litigation in
terms of time and money, the state took up the responsibility as vicarious victim. For a
wrong to be classified as crime in Nigeria it must be written. Any wrong which is not
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in a statute therefore cannot be prosecuted as a crime or offence. The Court of Appeal
in Paulson v. State (2011) LPELR-4875(CA) stated that "An act or omission is not a
crime unless its definitions and punishment for it are contained in a written law..."Per
SHOREMI, JCA (P. 29, paras. E-F). Also, in Odon v. Amange & Anor (2008) LPELR-
4681(CA) the court held "Put in simple language, a crime is an offence which is
punished by law or activities that involve breaking the law or prohibited by the law. In
the Blacks Law dictionary, a crime is defined as follows: - "An act that the law makes
punishable; the breach of a legal duty treated as the subject matter of a criminal
proceeding." Per Garba, JCA (P. 35, paras. A-C).

There are minor offences (misdemeanor) and serious offences (felony). The sentences
for the types of offences are different. The punishment for the former is lesser than that
of the latter.

When an offence is committed the police (or the appropriate law enforcement agency,
like NAFDAC, EFCC, ICPC, DSS, etc.) arrests the defendant (the alleged accused
person/offender) and where necessary detains him and arraigns him in court within a
reasonable time. He must be confronted with the allegation against him and allowed to
counsel of his choice in making statement. Where the defendant is found to have case
to answer, the prosecutor (the vicarious victim) files the charge (at a Magistrate court)
or files information (at the High Court) against the defendant. The defendant has the
right to defence and must be given proof of evidence against him to enable him defend
himself. When arraigned he is entitled to bail upon condition or self-recognizance
except where the offence attracts capital punishment.

The standard of proof for the prosecutor to succeed in getting the court to convict the
defendant is proof beyond reasonable doubt while the standard of proof for the
defendant in denying the charge against him is balance of probability. Where the
prosecutor proves the case the defendant is convicted and sentenced but where the
prosecutor fails he is discharged and acquitted. In cases where the court finds that the
accused is culpable but some technical hitch prevents conviction the court may
discharge him in which case he may be prosecuted in future with further materials. But
once discharged and acquitted he cannot be prosecuted for same offence a second time
otherwise it would amount to double jeopardy prohibited by law.
23
 In certain cases the defendant is found not quite culpable from available evidence. The
prosecutor has the option to release him on ground of nolle prosequi which is a
constitutional power of the Attorney-General to discontinue a case against a defendant.
That power is delegated to the prosecutor. In Gani Ashiru v.The State (2018) LPELR-
46677(CA) the Court of Appeal held that “the Attorney General has the power to
institute and undertake any proceedings against any person before any Court of law
other than a Court martial, in respect of any offence created by or under any law of the
State house of assemble. See Section 211 (1) of the 1999 Constitution (as amended).
This power cannot be reviewed or questioned by Court. However, the Court is crowned
with the power to enquire and be satisfied that the purported act of Nolle is regularly
done by the authorized officer or official authorized by law to do so. In the instant case,
the purported Nolle was authored by Remi Olatubora Esq. the then Attorney General of
Ondo State but was filed on 8/6/2017 when Olatubora Esq. ceased to be in office as the
Attorney General. Therefore he is not clothed with the legal capacity to do so, as at
8/6/2017.” Per DANJUMA, JCA.

Another step the defendant may take in a criminal case is to plea bargain the offence.
Where the defendant finds the case not quite in his favour he may request the prosecutor
for plea bargaining. In some other instances the prosecutor may initiate the plea bargain
to save the state some fund.

b) Civil Law: In contrast to criminal law, civil law involves cases between individuals
usually on private issues. It is could be in the form of a wrong done by the defendant to
the claimant (hitherto plaintiff). Generally civil wrongs are classified as torts.
Interestingly, the wrongs in torts are similar to those in crimes. The difference is that
wrongs in torts are civil while the wrongs in crimes are criminal. Both of them have
assault, battery, trespass, conversion, libel etc. But the procedure for prosecution of the
cases differs, the ingredients differ and the standard of proof differs. The end goal of
civil action is not to punish as in criminal but to compensate the claimant. The standard
of proof in civil is balance of probability or preponderance of evidence. There are other
cases that fall under civil such as contract. There are different levels of wrongs called
breaches in contract for which the claimant shall be entitled to compensation.

24
1.4.2 Public Law and Private Law Classification
a) Public Law: For the purpose of academics, law may be classified as public or private.
Public law consists of laws that relate to the state and not individuals. According to
Obilade, public law “regulates the relationship between the organs of government and
the relationship between individuals and the state.”3 The subjects that come under
public law therefore are:
i) Criminal law
ii) Law of Evidence
iii) Constitutional law
iv) Administrative law
v) Law of Taxation

b) Private law: As earlier stated, private law like civil law are law subjects which involve
relationships between individuals and sometimes individuals and the state. Subjects so
classified include:
i) Law of contract
ii) Law of torts
iii) Law of trusts
iv) Family Law
v) Law of intellectual property
vi) Law of succession
vii) Land law
viii) Conveyancing law
ix) Law of shipping
x) Law of insurance
xi) Company law
xii) Law of commercial transactions
xiii) Law of partnership

3
Akintunde Obilade, The Nigerian Legal System. Ibadan: Spectrum Books Limited 1979, p.8.

25
1.4.3 Adjectival Law versus Substantive Law
Laws can be classified as adjectival and substantive law. Adjectival laws are otherwise called
procedural laws. They are laws that provide for how actions are conducted in court while
substantive laws are specific laws governing different issues or subjects in law.
a) Adjectival laws: The following are classified under adjectival laws:
i) Civil procedure laws
ii) Criminal procedure laws
iii) Law of evidence
iv) Practice directions

b) Substantive laws: These are part of the laws that deal with the rights and obligations of
individuals which include for example the following:-
i) Torts
ii) Contract
iii) Trusts
iv) Land law
v) Criminal law
vi) Insurance law
vii) Succession law
viii) Tenancy law
ix) Business law
x) Company law

1.5 Law in a technology driven ecosystem

One contemporary phenomenon and impact of human development is technological change in
global mode of doing things. Today, the world order has become altered by technology from
the traditional mode to digital economy. Most of the laws previously enacted for social,
scientific and economic control are fast becoming obsolete. The greater challenge is that the
pace of technological innovations and disruptions appear too quick to catch up with. It takes
innovative laws as well to control the changes in order to protect humanity. Law now functions
in that direction too.

26
 Summary of Module 1

The module in summary discusses the concept of law in its basic terms by explaining it through
different descriptions as preferred to definition. The module in further explaining law discussed
the functions of law in society, types of law, classifications of law, and the contemporary issue
of law in technology driven ecosystem.

Self-Assessment Questions
1. In your own words describe law from the various approaches stated in the module.

2. Identify four schools of thoughts and state succinctly their respective explanation of the
concept of law.

3. What is the difference between types and classifications of law?

4. Mention four of classifications of law.

5. Explain the reason behind classification of law into civil and criminal law?

References

1. Akintunde Obilade : The Nigerian Legal System (1979, Spectrum)

2. Hadfield, Gillian K., and Barry R. “What is Law? A Coordination Model of
the Characteristics of Legal Order” 2012 Journal of Legal Analysis

27
 STUDY SESSION 2

SOURCES OF LAW IN NIGERIA

Introduction

This study session focuses on various sources of law in Nigeria. These sources, inter alia,
include the Constitution, Legislation, Judicial Precedents, Customary Law, Received English
Law. The session discusses the hierarchy of these laws and the existing differences between
them.

Learning Outcomes for Study Session 2

1.At the end of this study session, students should be able to explain various sources of law in
Nigeria.
2. students should be able to differentiate between different sources of law in Nigeria
3. Learners should be able to explain hierarchy of laws in Nigeria

2.1 The Constitution and Nigerian Legislation

a) The Constitution: The Supreme Court in FRN v. Osahon & Ors. (2006) LPELR-3174(SC)
described a constitution this way: "Constitution of any country is the embodiment of what a
people desire to be their guiding light in governance, their supreme law, fountain of all their
laws. As such, Constitution is not at any given situation expected to or presumed to contain
ambiguity. All its provisions must be given meaning and interpretation even with the
imperfection of the legal draftsman. Common sense must be applied to give meaning to all its
sections or articles." Per Belgore, J.S.C. (Pp. 24-25, Paras. F-A).

The first in the hierarchy of laws in a modern society is usually the Constitution. The
constitution in an ideal situation serves as the grundnorm of the society. According to the jurist
and legal philosopher, Hans Kelsen, the grundnorm is the basic norm upon which the entire
legal system of a country is founded. The constitution governs and provides for the make-up
of the state institutions and the rights and obligations of the citizens, the institutions and
agencies of government. It is not quite accepted that the Nigerian Constitution meets the

28
standard of the grundnorm posited by Kelsen. It is however in the similitude of it to a large
extent. For that reason any law that is contrary to the provisions of the Constitution shall to the
extent of its contrariness to the Constitution be null and void. Such law cannot be allowed by
the courts to remain. The Supreme Court holding on the supremacy of the Constitution held in
Abacha & Orsv. Fawehinmi (2000) LPELR-14(SC) that "The Constitution is the supreme law
of the land; it is the grundnorm. Its supremacy has never been called to question in ordinary
circumstances. For avoidance of doubt, the 1979 Constitution stated categorically in its chapter
1, Section 1(1) as follows: 1(1) "This Constitution is supreme and its provisions shall have
binding force on all authorities and persons throughout the Federation Republic of Nigeria."
For purposes of clarity, its Section 1(3) goes further to state: 1(3) "If any other law is
inconsistent with the provision of this Constitution this Constitution shall prevail, and other
law shall to the extent of the inconsistency be void." Per ACHIKE, J.S.C (P. 90, paras. C-G).

Nigeria being a colonized entity by the British Empire pre-1960 years never by its peoples
enacted its constitution until 1979. The 1960 Constitution was received from the imperialists
even though Nigerians participated in it. It was strictly under the British supervision. The 1979
Constitution was drafted under a military regime same as the current Constitution of the Federal
Republic of Nigeria, 1999.

The 1999 Constitution is the highest in the rank of sources of law in Nigeria. Every other law
derives its validity from the Constitution. Every act or omission that runs contrary to the
provisions of the Constitution is null and void. See also Africa. C. B. Plc v. Losada Nig. Ltd. &
Anor (1995) LPELR-205(SC) where the Supreme Court reiterated thus: "It has never been the
case in our law that the provision of an ordinary statute would render nugatory the relevant
provision of the Constitution. See Ishola v. Ajiboye (1994) 6 N.W.L.R. (Pt. 352) 506 at p. 621;
(1994) 19 L.R.C.N. 35. Therefore, if any law of a state including a subsidiary legislation like
the aforesaid High Court (Civil Procedure) Rules of Lagos State, is inconsistent with the
provisions of the Constitution, the provisions of the Constitution prevail, and that state law is
to the extent of the inconsistency void. Therefore, any provision of the Rules which purports to
dispense with hearing of a defendant before judgment is given against him will be null and
void." Per ADIO, J.S.C. (P. 35, paras. G-D). One feature of a Constitution worth its standard
must be such that may not be amended as a matter of course.

29
 c) Nigerian Legislation: Nigerian legislation is the total of written laws enacted by the
legislature or appropriate organ of government with legislative powers in Nigeria.
Nigerian legislation have been enacted and promulgated by democratic regimes and
military regimes. Those laws passed by the colonial Nigerian legislative Houses before
1st October 1954 were known as Ordinances. Since after independence in 1960 laws
enacted by a democratically elected legislature at the national level is called Act. Where
the law is made at the national level under the military it is called Decree. If the law is
made at the legislature at the state level it is called Law. Where the law is made by the
military at state level it is referred to as Edict. Laws made at the level of the local
government are called Bye-Laws. Where the executive make laws they are called
executive orders.

It should be noted that legislation made by military regimes in Nigeria that survive till civilian
regimes are automatically, under civilian regime, converted from Decrees and Edicts to Acts
and Laws, respectively. The Court in Okeke v A.G Anambra State (1992) 1 NWLR Pt 215 Pg
84.para E-G pronounced concerning Decree 84 of 1984 thus: "This Decree may be cited as the
Federal Military Government (Supremacy and Enforcement of Powers) Decree 1984. This
Decree is now called an Act and forms part of the Laws of the Federation of Nigeria 1990
(Cap.13) Vol. VIII, pp.5857-5859. "

1. ……………… is referred to as the fountain or grundnorm of all other laws

(a) The Constitution (b)legislation (c) common law (d) all of the above
2. Any other law that is inconsistent with the provisions of the Constitution is
null and void (a) false (b)true
3. ………………… is the total of written laws enacted by the legislature (a)
the Constitution (b)legislation (c) all of the above (d) none of the above
4. Laws passed by the Colonial Nigerian Legislative Houses before the 1st
October, 1954 are known as ……. (a) ordinances (b) the Constitution (c)
Decrees (d) Edicts

30
 1. (a) The Constitution
2. (b) True
3. (b) Legislation
4. (a) Ordinances

2.2 Customary Laws

Prior to the coming of the British imperialists in Nigeria the different people inhabiting the
geographical entity named Nigeria had their unwritten indigenous laws being an integral part
of their cultural heritage. The laws are part and parcel of the people’s culture. These laws are
called customary laws. Each of the over ethnic groups that make up the Nigerian entity has its
unique sets of customary laws. It should be noted however that Islamic laws have been
classified under customary laws as well. But this position is controversial because Islamic laws
have written versions and were also received from the Arab world. Perhaps the reasoning for
classifying Islamic laws under customary laws is owing to the internalization of the laws in the
culture of the Hausas and Fulanis.

The Court of Appeal in Abdullai Idris Oseku & Ors. v. The Min. Fct, Abuja & Ors. (2007)
LPELR-3560(CA) illuminated on the nature of customary law in Nigeria thus: "For better
insight into customary law see: Nwagbogu v. Abadom (1994) 7 NWLR (pt. 356) 357 where it
was held:- 1. Customary Law is one source of Nigerian law.
[a] It is 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.
[b] It is regulatory in that it controls the lives and transactions of the community subject to it.
Oyewunmi v. Ogunsan (1990) 3 NWLR (pt.137) 182.

2. It is an established adjectival law that customary law is regarded as a fact and should
therefore be proved in the first instance.
[a] It is an issue which has always been a question of fact to be established by evidence.
[b] Thus the onus of proof is on the party asserting or alleging the existence of the particular
customary law.

31
3. Where a party claiming that right fails to prove customary law his case fails and would be
dismissed. Buraimoh v. Bamgboye (1940) 15 NLR 139; Adeyefa v. Oginni (1969)2 All NLR
60; Ekpan v. Uyo (1986) 3 NWLR (pt. 20) 63.

4. A customary law which is judicially noticed needs no further proof. Larinde v. Afikpo (1990)
6 WACA 108; Onisiro v. Fagbenro (1954) 21 NLR3; Olabanji v. Ajiboye (1992) 1NWLR (pt.
218) 473."PER PETER-ODILI, J.C.A. (Pp.27-28, Paras. D-C).
5. The Supreme Court in Okonkwo & Anor v. Okolo (1988) LPELR-2481(SC) pronounced on
the status of the unwritten customary laws thus: "It is naive to think that oral transactions no
longer exist because of the prevalence of writing. Transactions made under customary law
orally and without writing, still exist and are valid." Per Karibi-Whyte, J.S.C. (Pp.33-34,
Paras.G-A)g, still exist and are valid." Per Karibi-Whyte, J.S.C. (Pp.33-34, Paras.G-A)

The English legal system received by Nigeria subjected the customary laws to proof. Therefore
a person that alleges a rule of custom can only sustain it in court if the existence of the rule of
custom is proved by him. Accordingly in Ojiogu v. Ojiogu & Anor. (2010) LPELR-2377(SC)
it was held that "It is settled law that customary law is a question of fact which must be proved
or established by evidence." Per. Onnoghen, JSC. (P.31, para. G). Note however that where it
has been proved number of times it become notorious and the courts take judicial notice of it
and so needs not be proved.

One other test the customary law is subjected to owing to the English laws overriding influence
in the Nigerian legal system is the subjection of rules of customs to repugnancy test. It involves
considering whether a rule of custom relied on by a party is contrary to natural justice, equity
and good conscience. The Court explained repugnancy test in Ojukwu v. Agupusi & Anor
(2014) LPELR-22683(CA) as follows: "In Nwachinemelu Ikemefuna Okonkwo v. Mrs. Lucy
Udegbunam Okagbue & 2 Ors. (1994) 9 NWLR (PT. 308) 301, the Supreme Court in an
Appeal that emanated from this Honourable court in a case from the High Court of Anambra
State, Onitsha Judicial Division where the custom of the Onitsha people that enabled a woman
to marry another woman for purposes of raising children for her deceased brother fell for
consideration. Ogundare, J.S.C. at page 343 paragraph H to page 344 paragraphs A-B of his
contribution to the lead Judgment of Uwais J.S.C. wherein Wali, Ogundare, Mohammed and
Adio J. JSC concurred, reasoned thus:- "The institution of marriage is between two living
persons. Okonkwo died 30 years before the purported marriage of the 3rd defendant to him. To
32
claim further that the children the 3rd Defendant had by other man or men are the children of
Okonkwo deceased is nothing but an encouragement to promiscuity. It cannot be contested that
Okonkwo (deceased) could not be the natural father of these children. Yet 1st and 2nd
Defendants would want to integrate them into the family. A custom that permits of such a
situation gives licence to immorality and cannot be said to be in consonance with public policy
and good conscience. I have no hesitation in finding that anything that offends against morality
is contrary to public policy and repugnant to good conscience. It is in the interest of the children
to let them know who their true fathers are (were) and not to allow them live for the rest of the
lives under the myth that they are children of a man who had died many decades before they
were born." I hold the view that the observations of the learned Justice of the apex Court apply
to the facts and circumstances of this case where a man who died in 1987 could still father four
children long after his death and that the learned trial Judge had no rationale basis for
distinguishing our present case from Okonkwo v. Okagbue (supra). Ogundare J.S.C. again in
the course of his contribution also alluded to Edet v. Essien (1932) 11 NLR 47 per Cecil Carey,
J. who held in a case where a man claimed the child of his former wife who had left and married
another husband who impregnated her, on the ground that the divorced wife had not refunded
the bride price; that such a custom is repugnant to natural justice equity and good conscience,
to be rightly decided, and went on to reflect on Nwaribe v. President Registrar, Eastern Orlu,
8 ENLR 24 which he held that if Egbuna, J.S. decision was understood to uphold the local
custom of Otulu which is akin to the Nnewi Custom, now in contention, then it was wrongly
decided. With the greatest respect to the learned counsel to the Respondent and indeed the
learned trial Judge, the decision of the learned Ogundare, J.S.C. in the Okonkwo v. Okagbue
case was not obiter but was part of the ratio decidendi which was founded on settled principle
of our Customary jurisprudence that any custom which is repugnant to natural justice equity
and good conscience or contrary to public policy or any Law in force should not be enforced
but should be struck down. Before the decision of the learned trial Judge which is now on
Appeal, there had been a host of decided cases some of which I shall make bold to list
hereunder, on this principle of our law. In the celebrated case of Mariyama v. Sadiku Ejo (1961)
NRNLR 81; it was held that the Respondent was not entitled to custody of children the
Appellant/woman had for another man fifteen months after she last had any relationship with
the Respondent her former husband. Meribe v. Egwu (1979) 3 S.C. 23 which was cited by the
learned counsel for the Appellant also declared a custom which permitted marriage of one
Woman to another (in which the children of such marriage would not be sure of their natural

33
father) to be repugnant to natural justice equity and good conscience. See further Helen Odigie
v. Iyere Aika (1985) NBCL 51." Per AGUBE, J.C.A. (Pp. 38-41, paras. D-C).
Further on repugnancy test Ojukwu v. Agupusi & Anor (2014) LPELR-22683(CA) held that
"...I shall adopt the dictum of Ogundare JSC, in the Okagbue case as well as Oyewunmi v.
Ogunsesan (1990) 2 NWLR 182; where he stated that: "In deciding whether a custom is
repugnant to natural justice, equity and good conscience or contrary to public morality or
policy, involves the value judgment of the Judge/Court which should be objectively related to
contemporary mores, aspirations, expectations and sensitivities of the people of this country
and the consensus opinion of civilized international community which we share." There is no
doubt that with improved technological developments we are now in a global village and
accordingly our culture must reflect these changing times yet without compromising our
natural values and ethos." Per AGUBE, J.C.A. (P. 42, paras. B-E).

2.3 The Received English Laws

By virtue of section 2 of the Law (Miscellaneous) Provision Act and the High Court Laws in
different states of the federation Nigeria inherited some English Laws namely the Common
Law and Doctrines of Equity and the Statutes of General Application which were in force in
England as of 1 January 1900.
a) Common Law and Doctrines of Equity: There is the controversy as to whether to
separate common law from doctrines of equity in which case they shall be discussed as
distinct aspects of the received laws. If the argument to separate them is accepted then
it can be stated that three types of laws were received from the English legal system.
The argument preferred here is that both cannot be separated in view of the history of
the two systems eventually merged to complement each other under the Judicature Act
1873-75. All High Courts Laws in Nigeria through one section or the other adopted that
provision of the Judicature Act. The Supreme Court in Nigerian Tobacco Company Ltd.
v. Agunanne (1995) LPELR-2034(SC) "The common-law is distinguishable from any
law enacted by the legislature. It is a body of principles and rules of action relating to
the government and security of persons and property which derive their authority solely
from usages and customs of immemorial antiquity and from the judgments and decrees
of the courts recognising, affirming and enforcing such usages and customs." Per
OGUNDARE, J.S.C. (P. 49, paras. D-F). As determined by B. J. Export & Chemical
Company Ltd v. Kaduna Refining & Petro-Chemical Company Ltd (2002) LPELR-
12175(CA) "...Therefore having regard to the history of this great nation Nigeria and
34
 its legal system, the Common Law principles of law are not only still applicable in the
development and continued development of our legal system but will also continue to
be so applicable." Per MOHAMMED, J.C.A (P. 37, paras. A-B). On the
complementarity between common law and equity the Court in Obanor & Company
Ltd. v. Co-Operative Bank Ltd. (1995) LPELR-1583(SC) held "It is elementary to write
about the relationship of equity and common law. It is plain however to say that the
characteristic common to all equitable remedies and which distinguishes them from
common law remedies is their discretionary nature. Courts in this country can have
resort to equitable principles and establish a remedy where strict adherence to common
law rules would cause injustice and hardship to parties." Per MOHAMMED, J.S.C. (Pp.
15-16, paras. F-A). Equity is the mitigating arm of common law. Where therefore there
is a conflict between the application of common law and equity the rules of court in
Nigeria is that equity shall prevail. However, where the conflict arises between common
law and a Nigerian legislation the legislation being a statute shall prevail. See the
dictum as stated in Patkun Industries Ltd. v. Niger Shoes Manufacturing Company Ltd
(1988) LPELR-2906(SC) "Again where a statutory provision is in conflict or differ
from common law, the common law gives place to the statute. A statutory right may be
conferred in addition to, and not in derogation of a common law right". Per NNAMANI,
J.S.C.. (Pp. 21-22, paras. G-A).

b) Statutes of General Application: What constitutes statutes of general application is not

easily visible in Nigeria. But quite a number of laws applicable in Nigeria today are
statutes of general application. Statutes of general Application are those written laws
inherited from England before 1 January 1900. That accounts for why most of our laws
are obsolete and not meeting the new legal ecosystem. The Court attested to the
dominance of the statutes of general application in HYD Road & Others Tech Ltd &
Anor v. Abia State Govt & Anor (2014) LPELR-24375(CA) when it held "It is trite that
Nigeria was a Colony of Britain and that both our Procedural Laws as well as our
substantive Law of Contract as in this case, were either received hook line and sinker
or part of what were then referred to as Statutes of General Application from England."
Per AGUBE,J.C.A. (P,37,paras.D-E). Again, it was held in Dike & Ors v. Governor of
Imo State & Anor (2012) LPELR-20868(CA) that "It should be noted that the
Interpretation Act is a statute of general application, and therefore applies to all the
states of the Federation, including Imo State. Per TSAMMANI, J.C.A. (P. 43, para. C).
35
 1. ……………… is referred to as unwritten indigenous law (a) customary law (b) decrees
(c) edicts (d)legislation
2. Islamic Law is a sub-set of customary law (a) false (b) true
3. Customary law must not be repugnant to natural justice, equity and good conscience
(a) true (b) false
4. Statute of General Application is an example of Received English Law (a)false (b)true

1. (a) customary law

2. (b) true
3. (a) true
4. (b) true

2.4 Judicial Precedents/ Case Law

Judicial precedent is a system developed by common law. It is a system whereby decisions of
superior and higher courts are held as binding on lower courts in as much as the issue
determined are the same or similar. It is otherwise known as stare decisis. In the case of
Onyemaizu v. Ojiako & Anor (2000) LPELR-10373(CA) the Court of Appeal explained the
doctrine thus: "Nigerian Courts, operating the Common Law, religiously follow the doctrine
of precedent in the enforcement of the judicial process. As a matter of law and tradition, they
adore the doctrine. Under the doctrine, decisions of superior Courts are binding on the inferior
Courts. Put in another language, decision of a higher Court is binding on a lower Court. Thus,
decisions of the Supreme Court are binding on the Court of Appeal and all other Courts below
it. Decisions of the Court of Appeal are binding on the High Courts and all other courts of
below. Decisions of the High Courts are generally binding on Magistrates Courts and other
inferior Courts." Per TOBI, J.C.A. (P. 36, paras. B-E).

Similarly the Supreme Court held in Abacha & Ors v. Fawehinmi (2000) LPELR-14(SC) that
"By the time-honoured doctrine of precedent as it operates in Nigeria and common law

36
countries, the decision on a given issue of law handed down by the apex court, which for us in
Nigeria is the Supreme Court, is not only superior but binds all subordinate courts, including
all courts exercising appellate jurisdiction. It is the law that a decision of a court of competent
jurisdiction. no matter that it seems palpably null and void, unattractive or insupportable,
remains good law and uncompromisingly binding until set aside by a superior court of
competent jurisdiction: see Babatunde and Anor v. Olatunji and Anor (2000) 2 NWLR (PC
646) 557 and Ezeokafor v. Ezeilo (1999) 9 NWLR (Pt.619) 369. (1999) 6 SC (Pt. 11) 1. With
the utmost respect to Musdapher, JCA, it is an inexcusable judicial disrespect or arrogance to
deny the subsistence of the hierarchical order of superiority of Nigerian laws as adumbrated by
the Supreme Court in Labiyi case. This posture of the lower court is more startling in the
absence of any convincing reason given for that far-reaching proposition of the law when the
doctrine of precedent stare decisis of great antiquity, embedded in the English common law
and indeed, an integral part of our law which is anchored in good reason, logic and
commonsense and has not been demonstrated to be manifestly out of step with modern
development in law should be blown away by a side-wind. There is therefore no basis
whatsoever for the lower court not to have followed the decision in Labiyi case." Per ACHIKE,
J.S.C (Pp. 94-95, paras. A-A).

According to Tabiowo v. Disu (2008) 7 NWLR (Pt.1087) 533 at 549, paras. F-H (CA) "By the
doctrine of judicial precedent, otherwise known as stare decisis, it is a well settled principle of
judicial policy that lower courts may depart from their own decisions reached per incuriam,
but they cannot refuse to be bound by decisions of higher courts even where the decisions were
given erroneously. Consequently, the Court of Appeal cannot refuse to be bound by the
decisions of the Supreme Court. Dalhatu v. Turaki (2003) 15 NWLR (Pt. 843) 310." Per
Galinje, JCA. It is instructive that "A case does not lose its value as a judicial precedent in the
common law system on the ground of age. As a matter of law, a case, which has survived the
test of judicial precedent, is recognized as stable if decided by the highest court of the land and
will receive the adoration of the lower courts until overruled by the highest court. But until it
is overruled, it represents the state of the law; the older a case the maturer it is, and this court
and all the courts below are bound to follow it, and not throw it in the dustbin. In the instant
case, the trial court wrongly refused to follow the Supreme Court's decision in Osawe's case
which has not been overruled. See Okpala v. Okpu (2003) FWLR (Pt. 150) 1623, (2003) 5
NWLR (Pt. 812) 183". Per Ogbuagu JSC. THE REG. TRUST. OF NATIONAL ASS. OF

37
COMMUNITY HEALTH PRACTITIONER OF NIGERIA & ORS. V. MEDICAL AND
HEALTH WORKERS UNION OF NIGERIA & ORS (2008) LPELR-3196(SC).

Three types of precedents are recognized in judicial precedents. They are ratio decidendi,
obiter dicta and per incuriam.
a) Ratio Decidendi: The ratio of a case is the pith of reason behind the decision reached
on a particular issue. The doctrine of ratio was well enunciated in Daramola v.
Aribisala & Anor (2009) LPELR-8515(CA) this wise: "… In determining the ratio
decidendi of a case, it is safer to consider the claim before the court and the issue which
the court was called upon to decide. Thus, the reasons given by the court for deciding
the claim before it is the ratio decidendi which the court is obliged to follow in
subsequent cases and will not lightly depart from unless to avoid the perpetuation of
errors ... Accordingly, opinions in the judgment which are not part of the material facts
even where relevant to the determination of the case do not constitute part of the ratio
decidendi and are not binding ... [italics for emphasis] As noted earlier, for Professor
Hood Phillips, "ratio is the reason for the decision or the principle of law on which the
decision was based". In N.A.B Ltd v B. Eng (Nig) Ltd (1995) 8 NWLR (Pt 413), the
Supreme Court endorsed the definition when it held that:" It is the principle of law upon
which a particular case is decided that is binding. And the principle is called the ratio
decidendi ... " The key to the resolution of the question which the appellants posed in
their second issue must, therefore, be located in the context of the above guidelines. In
the Savanah Bank case (supra), for example, Karibi-Whyte JSC enjoined us to
"consider the claim before the court and the issue which the court was called upon to
decide". So, what was the issue in Yusuf v Obasanjo? In the Law Reports [(2003) 16
NWLR (pt 847) at page 596 paragraph D; (2003) 50 WRN 1, 15 paragraph 5], Tobi
JSC delineated the contours of the issues in that case thus: "It appears to me that all the
issues formulated by the parties are basically the same as they zero on the amendments
sought by the appellants and the subsequent decision of the tribunal". [italics
supplied]."Per NWEZE, J.C.A.(Pp. 43-44, paras. B-D). The Supreme Court defined
ratio decidendi in Amobi v. Nzegwu & Ors (2013) LPELR-21863(SC) as follows: "…
ratio decidendi means "the reason for deciding" or the reasoning, principle or ground
upon which a case is decided. The legal principle formulated by the court, which is
necessary in the determination of the issues raised in the case, in other words the binding
part of the decision is its ratio decidendi, as against the remaining parts of the judgment,
38
 which merely constitute obiter dicta. See: Afro Continental (Nig.) Ltd. vs Ayantuyi
(1995) 9 NWLR (Pt.420) 411 @ 435 D - E; Saude vs Abdullahi (1989) 4 NWLR (Pt.
116) 387 @ 429 & 431: UTC (Nig.) Ltd. vs Pamotei (1989) 2 NWLR (Pt.103) 244 @
293." Per KEKERE-EKUN, J.S.C. (Pp. 40-41, paras. G-C).

b) Obiter dicta: In contrast to ratio decidendi, obiter dicta are by the way opinion of judges
in a judgment. This was explained aptly in Buhari & Ors v. Obasanjo & Ors (2003)
LPELR-813(SC) in this way: "Those who are familiar with the doctrine of obiter dicta
will know their limit in jurisprudence. They are not conclusive authority, they are to be
regarded as statements by the way. They arise when a Judge thinks it is desirable to
express opinion on some points, though not in issue or necessary to the case before him;
this makes obiter dicta not to have binding effect or weight on the case." Per Belgore,
J.S.C (P. 18, paras. E-F). Contrasting ratio and obiter the Court in AIC LTD v. NNPC
(2005) LPELR-6(SC) stated thus "The ratio decidendi of a case represents the
reasoning or principle or ground upon which a case is decided. Obiter simply means in
passing, incidental, cursory. Obiter dicta reflects, inter alia, the opinions of the Judge,
which do not embody the resolution of the court. The expression of Judge in a judgment
must be taken with reference to the facts of the case which he is deciding, the issues
calling for decision and answers to those issues. These are what should be looked for
in any judgment. The manner in which the Judge chooses to argue the case is not all
important thing. Rather it is the principle he is deciding: see U.T.C (Nig.) Ltd v. Pamotei
(1989) 2 NWLR (Pt.103) 244." Per Edozie, JSC. (Pp. 24-25, paras. E-A).

c) Per incuriam: A part of a judgment that arrives at a wrong conclusion in law will
constitute per incuriam. In a nutshell it can be described as a judgment in error. As you
would observe in the case of Tabiowo v. Disu (2008) 7 NWLR (Pt.1087) 533 at 549,
paras. F-H (CA) "By the doctrine of judicial precedent, otherwise known as stare
decisis, it is a well settled principle of judicial policy that lower courts may depart from
their own decisions reached per incuriam, but they cannot refuse to be bound by
decisions of higher courts even where the decisions were given erroneously.

2.5 International Instruments and Text of Legal Authorities

International instrument or treaties and agreements constitute sources of laws also. These laws
are generally referred to as international law. They are expected to be respected in the spirit of
39
pacta sun servanda. It should however be noted that for an international law to be binding in
Nigeria section 12 of the 1999 Constitution requires that it must be ratified and adopted
(domesticated) as part of our laws for it to have effect. Examples of such instruments Nigeria
has adopted is the African Charter of Human Rights.

Another source of law in Nigeria as in other common law jurisdictions are texts written by
recognized legal authorities. For example, Prof Akintunde Obilade’s, Chief Afe Babalola SAN
books, Prof Ben Nwabueze’s, Prof M. D. Ladan’s and so on. Their writings are persuasive to
the courts.

Summary of Module 2

In this module we have been able to explain the various sources of laws in Nigeria. We
identified the following as the sources: 1. The Constitution, 2. The Nigerian Legislation, 3.
Customary laws, 4. The Received English Laws, 5. Judicial Precedents/ Case Law, 6.
International instruments and 7. Texts of Legal Authorities. Each of the identified sources were
illustrated and sometimes with cases.

2.7 Self-Assessment Questions

1. What is judicial precedent?

2. Enumerate the three types of stare decisis doctrines and explain each of them in your own
words.

3. Why is ignorance of the law not an excuse in law?

4. Identify and explain each of the received English laws in Nigeria.

5. Mention the different types of statutes/legislation made by the different levels of

governments in Nigeria.

6. Explain customary laws and state the requirements of proof of customary laws.

40
7. What are Statutes of General Application?

8. What is a statute?

9. Where there is a conflict between common law and statute which prevails?

10. In cases where there is a conflict between common law and equity which prevails?

References
1. Akintunde Obilade : The Nigerian Legal System (1979, Spectrum)
2. J.O. Asein : Introduction to Nigerian Legal System (1998, Sam Bookman
Publishers)

41
 STUDY SESSION 3

COURT SYSTEM IN NIGERIA

Introduction
The judiciary as the third arm of government embodies the court which is primarily saddled
with the responsibility of interpreting the law. The judiciary functions through the machinery
of the court and it provides adequate checks and balances on the other arms of government to
forestall abuse of government powers. The courts as the last hope of the common man is
expected to dispense justice without fear or favour. Hence the importance of a court system in
any country cannot be overemphasized.

Learning Outcomes for Study Session 3

1. At the end of this study session, the learner should be able to explain the machinery of
court system in Nigeria.
2. Learners should be able to discuss classification, hierarchy and jurisdiction of various
courts in Nigeria.
3. Student should be able to explain power, composition and jurisdiction of each court and
other adjudicatory bodies such as tribunals and special courts will be discussed.

3.2. Classification of Courts

In Nigeria, courts are usually classified in several ways. The most important forms of
classification are classification into superior court and inferior courts; classification into courts
of record and courts other than courts of record; and courts of limited jurisdiction and courts of
unlimited jurisdiction.

3.2.1 Superior and Inferior Courts

This classification is based on the scope of competence of court. A superior court is commonly
known as a court of general competence usually characterized by unlimited jurisdiction. A
superior court is not subject to the control of any other court and its decisions are not subject
to judicial review. However, its decisions are subject to appeal to a higher court in the hierarchy

42
of courts. An example of a superior court is the High Court of a State. On the other hand, an
inferior court is a court whose decision is subject to judicial review and supervisory jurisdiction
of High Courts. They are subordinate courts with limited jurisdiction with respect to the type
and value of subject-matter.4 An inferior court includes the Magistrates’ courts.

3.2.2. Courts of Record and Courts Other Courts of Record

Generally, a court of record is a court whose acts and proceedings are recorded and may be
subsequently made available as evidence of facts. It includes a trial or appellate court in which
a record of the proceedings is captured and preserved for the possibility of subsequent appeal.
Superior courts are usually courts of record. For instance, section 6(3)and(5) of the Constitution
of the Federal Republic of Nigeria, 1999 as amended declare superior courts listed in the said
section as Superior Courts of Record.5 These courts include the Supreme Court, Court of
Appeal, State High Court, Federal High Courts, etc.

Superior Courts of Record are required to keep formal and detailed records containing the
proceedings, including evidence adduced and judgment delivered. Their judgments must
contain reasons for the decision which requirement is not binding on inferior courts and
tribunals as they are not required to proffer reasons for their decisions.6 The statute creating a
court may expressly declare the court to be a court of record. However, where the establishing
statute is silent on this status of the court, the test is to determine whether such court has power
to punish for contempt both in facie curie (contempt committed in the face of the court) and ex
facie curie (contempt committed outside the court). It should be noted that while a superior
court is usually a court of record, a court of record may be a superior court of an inferior court.
While a superior court of record can punish for contempt in facie curie and ex facie curie a
court other than an inferior court of record under common law can only punish contempt
summarily where the offence of contempt is committed in the face of the court, and not outside
the court.

3.2.3. Courts of Limited Jurisdiction and Courts of Unlimited Jurisdiction

Generally, jurisdiction refers to the power or authority of a court to entertain a legal matter and
thereby make orders, rulings or judgments on such matters. Where such power or authority is

4
A.O. Obilade, The Nigerian Legal System (1979, Sweet and Maxwell, London) 169.
5
Section 6(3) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.
6
N.O. Osita, Modern Nigerian Legal System (2013, SNAAP Press Ltd, Enugu) 211

43
void of any form of constraints, such court is said to be a court of unlimited jurisdiction.
However in the strict sense of the term “unlimited jurisdiction”, no court in Nigeria has such
jurisdiction. But superior courts are usually referred to as courts of unlimited jurisdiction
because of they have minimal jurisdictional limits with respect to the type of subject-matter of
the case.7 Hitherto, State High Courts were referred to courts of unlimited jurisdiction. But
more appropriately, they are now known as court of general jurisdiction.

3.3. Hierarchy of Courts

Provisions of section 6 of the 1999 Constitution, as amended vest the judicial powers of the
Federation and states in courts established for the Federation and states, respective. These
courts are listed in section 6(5) of the Constitution as follows:
(a) the Supreme Court of Nigeria;
(b) the Court of Appeal;
(c) the Federal High Court;
(d) the High Court of the Federal Capital Territory, Abuja;
(e) a High Court of a State
(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) a Sharia Court of Appeal of a State;
(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;
(i) a Customary Court of Appeal of a State;
(j) such other courts as may be authorised by law to exercise jurisdiction on matters
with respect to which the National Assembly may make laws; and
(k) such other court as may be authorised by law to exercise jurisdiction at first instance
or on appeal on matters with respect to which a House of Assembly may make laws.

The effect of section 6(3) of the same Constitution is putting a cloak of superior court of record
on the above listed courts. These courts are the only recognized superior courts of record and
as such their jurisdiction is not limited by the value of the subject matter of a case. They are
usually competent to award the maximum remedy or penalty prescribed by law though they
may be subject to jurisdictional limits with respect to the type or class of actions they may
entertain.8

7
A.O. Obilade, Supra note 1
8
J.O. Asein, Introduction to Nigerian Legal System (1998, Ababa Press Ltd, Lagos) 173

44
3.3.1 Supreme Court of Nigeria
At the apex of the court structure in Nigeria is the Supreme Court. It is the court of final appeal
in Nigeria. Section 230 of the Constitution provides for the establishment of Supreme Court
and the court entertains appeals from the Court of Appeal.

Appointment
The court of consists of the Chief Justice of Nigeria and Justices of the Supreme Court not
exceeding the total number of twenty-one. The Chief Justice is appointed by the President upon
the recommendation of the National Judicial Council subject to confirmation of such
appointment by the Senate. In the same vein, appointment of a person as a Justice of the
Supreme Court is made by the President upon the recommendation of the National Judicial
Council subject to confirmation of such appointment by the Senate. In order to be qualified as
the Chief Justice of the Federation or as a Justice of the Supreme Court, a person must have
qualified to practice as a legal practitioner in Nigeria for not less than fifteen years.
Where the office of the Chief Justice has become vacant or he has become incapacitated to
perform the functions of the said office, the President can single handedly appoint an Acting
Chief Justice without the recommendation of the National Judicial Council or approval of or
confirmation by the Senate. However, such temporary appointment shall elapsed after a period
of three months except where the National Judicial Council otherwise recommends and in the
absence of such recommendation, the President cannot re-appoint a person whose temporary
tenure of three months has elapsed.

Jurisdiction
The Supreme Court exercises both original and appellate jurisdiction. The court has original
jurisdiction on matters of legal rights involving the Federation and a state as the parties or
matters between states of the Federation. Original jurisdiction of the court may also include
matters as may be conferred or vested on it by an Act of the National Assembly provided that
such Act shall not confer original jurisdiction on the court with respect to criminal matters. The
Court also has appellate jurisdiction. It entertains appeals from the decisions of the Court of
Appeal. This power to entertain appeals from the lower court (Court of Appeal) can be as of
right or with the leave of court.
An appeal shall lie form decisions of the Court of Appeal to the Supreme Court as of right in
the following cases -

45
(a) where the ground of appeal involves questions of law alone, decisions in any civil or
criminal proceedings before the Court of Appeal;
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or
application of this constitution,
(c) decisions in any civil or criminal proceedings on questions as to whether any of the
provisions of Chapter IV of this Constitution has been, is being or is likely to be,
contravened in relation to any person;
(d) decisions in any criminal proceedings in which any person has been sentenced to death
by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death
imposed by any other court;
(e) decisions on any question -
(i) whether any person has been validly elected to the office of President or Vice-
President under this Constitution,
(ii) whether the term of office of office of President or Vice-President has ceased,
(iii) whether the office of President or Vice-President has become vacant; and
(f) such other cases as may be an Act of the National Assembly.9
Subject to the above list of matters, every other appeal comes by way of leave of court of
the Court of Appeal or the Supreme Court. However, such leave may be waived by the
Supreme Court where it is of the opinion that interests of justice do not require such
leave or application.

It should be noted that although the Supreme Court is the apex court and its decision is not
appealable, the Supreme Court may overrule itself in a subsequent matter brought before it
and its decision can also be overruled by express provisions of a legislation.

Constitution
In the exercise of its jurisdiction, the Supreme Court is duly constituted if it consists of at
least five Justices of the Supreme Court. However in special instances, the court is required to
be constituted by seven Justices of the Supreme Court. These instances include:
(a) Where the court is sitting to exercise its original jusrisdiction;
(b) decisions in any civil or criminal proceedings on questions as to the interpretation or
application of this constitution,

9
See generally section 233 of the 1999 Constitution, as amended.

46
 (c) decisions in any civil or criminal proceedings on questions as to whether any of the
provisions of Chapter IV of this Constitution has been, is being or is likely to be,
contravened in relation to any person.10

3.3.2 Court of Appeal

The Court of Appeal is the second highest court in the hierarchy of courts in Nigeria. The Court
is established under section 237 of the 1999 Constitution and conferred with jurisdiction to
hear appeals from other courts on lower rung of the hierarchy. The Court consists of a President
and such number of Justices not less than 49 of which not less three are learned in Islamic
personal law, and not less three are learned in customary law too.

Appointment
The appointment of a person to the office of the President of the Court of appeal shall be made
by the President on the recommendation of the National Judicial Council subject to
confirmation of such appointment by the senate.11 The appointment of a person to the office of
a Justice of the Court of Appeal shall be made by the President on the recommendation of the
National Judicial Council.12 A person shall not be qualified to hold the office of a Justice of
the Court of Appeal unless he is qualified to practice as a legal practitioner in Nigeria and has
been so qualified for a period of not less than twelve years.

Where the office of the President of the Court of Appeal has become vacant or he has become
incapacitated to perform the functions of the said office, the President of the Federation can
single handedly appoint the most senior Justice of the Court of Appeal as an Acting President
of the Court without the recommendation of the National Judicial Council or approval of or
confirmation by the Senate. However, such temporary appointment shall elapsed after a period
of three months except where the National Judicial Council otherwise recommends and in the
absence of such recommendation, the President of the Federation cannot re-appoint a person
whose temporary tenure of three months has elapsed.13

10
Section 232 and 234 of the 1999 Constitution, as amended.
11
Section 238(1) 1999 Constitution
12
Section 238(2) Ibid
13
Section 238(4) and (5) of the 1999 Constitution

47
Jurisdiction
The Court of Appeal is essentially a court of appellate jurisdiction with limited original
jurisdiction in election petition cases.14 The Court of Appeal has original jurisdiction on
entertain any question as to whether :
(a) any person has been validity elected to the office of President or Vice-President under this
Constitution; or
(b) the term of office of the President or Vice-President has ceased; or
(c) the office of President or Vice-President has become vacant.

Hitherto, the Court of Appeal used to have exclusive and final jurisdiction over the above
matters but with the introduction of the Constitution(Second Alteration Act, 2010), the Court
of Appeal no longer has exclusive jurisdiction over matters involving the validity of any person
elected into the office of the President or Vice-President, term of such offices or determination
of vacancy or otherwise of the offices. Specifically, section 6 of the Constitution (Second
Alteration Act, 2010) amends section 233 of the Constitution by providing that appeal now lies
from the Court of Appeal to the Supreme Court over matters involving the validity of any
person elected into the office of the President or Vice-President, term of such offices or
determination of vacancy or otherwise of the offices, among other things.

In its appellate jurisdiction, the court has exclusive jurisdiction to entertain appeals from the
Federal High Court, the High Court of the Federation Capital Territory, Abuja, High Court of
a state, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal
of a state, Customary Court of Appeal of a state and from decisions of a court martial or other
tribunals as may be prescribed by an Act of the National Assembly.15

14
J.O. Asein, supra note 5
15
Section 240 of the Constitution of the Federation of Nigeria, 1999, as amended.

48
 1. Which of the arms of government is responsible for interpreting the law? (a)executive
(b) judiciary (c) legislature (d) administrative
2. Which of the following is not part of classification of courts in Nigeria? (a) superior
court (b) inferior court (c) limited jurisdiction court (d) jurisdiction court
3. The second highest court in the hierarchy of courts in Nigeria is (a) supreme court (b)
high court (c) court of appeal (d) magistrate court
4. Which of the following is essentially a court with appellate jurisdiction? (a) supreme
court (b) high court (c) court of appeal (d) magistrate court

1. (b) judiciary
2. (d) jurisdiction court
3. (c) court of appeal
4. (c) court of appeal

Appeals lie as of right to the Court of Appeal from decisions of the Federal High Court or a
High Court of a State in the following matters16 :
a) final decisions in any civil or criminal proceedings before the Federal High Court or a
High Court sitting at first instance;
b) where the ground of appeal involves questions of law alone, decisions in any civil or
criminal proceedings;
c) decisions in any civil or criminal proceedings on questions as to the interpretation or
application of this Constitution;
d) decisions in any civil or criminal proceedings on questions as to whether any of the
provisions of Chapter IV of this Constitution has been, is being or is likely to be,
contravened in relation to any person;
e) decisions in any criminal proceedings in which the Federal High Court or a High Court
has imposed a sentence of death;
f) decisions made or given by the Federal High Court or a High Court -
(i) where the liberty of a person or the custody of an infant is concerned,

16
Section 241(1) Ibid

49
 (ii) where an injunction or the appointment of a receiver is granted or refused,
(iii) in the case of a decision determining the case of a creditor or the liability of a
contributory or other officer under any enactment relating to companies in respect of
misfeasance or otherwise,
(iv) in the case of a decree nisi in a matrimonial cause or a decision in an admiralty
action determining liability, and
(v) in such other cases as may be prescribed by any law in force in Nigeria.

In all other cases and subject to the provisions of section 241 above, appeals lie from the
decisions of the Federal High Court or a High Court to the Court of Appeal the leave of the
Federal High Court or that High Court or the Court Appeal. However, the Court of Appeal may
dispose of any application for such leave to appeal from any decision of the Federal High Court
or a High Court in respect of any civil or criminal proceedings in which an appeal has been
brought to the Federal High Court or a High Court from any other court after consideration of
the record of the proceedings, if the Court of Appeal is of the opinion that the interests of justice
do not require an oral hearing of the application.17

Appeal also lies from decisions of a Sharia Court of Appeal to the Court of Appeal as of right
in any civil proceedings before the Sharia Court of Appeal with respect to any question of
Islamic personal law which the Sharia Court of Appeal is competent to decide. Any right of
appeal to the Court of Appeal from the decisions of a Sharia Court of Appeal shall be -
(a) exercisable at the instance of a party thereto or, with the leave of the Sharia Court of Appeal
or of the Court of Appeal, at the instance of any other person having an interest in the
matter; and
(b) exercised in accordance with an Act of the National Assembly and rules of court for the
time being in force regulating the powers, practice and procedure of the Court of Appeal.18

Similarly, appeal also lies from decisions of a Customary Court of Appeal to the Court of
Appeal as of right in any civil proceedings before the customary Court of Appeal with respect
to any question of Customary law and such other matters as may be prescribed by an Act of

17
Section 242 (1) and (2)
18
Section 244 of the 1999 Constitution, as amended.

50
the National Assembly. Any right of appeal to the Court of Appeal from the decisions of a
Customary Court of Appeal shall be -
(a) exercisable at the instance of a party thereto or, with the leave of the Customary Court of
Appeal or of the Court of Appeal, at the instance of any other person having an interest in
the matter;
(b) exercised in accordance with any Act of the National Assembly and rules of court for the
time being in force regulating the powers, practice and procedure of the Court of Appeal.19

Constitution
For the purpose of exercising its jurisdiction, the Court of Appeal is duly constituted if it
consists of a panel of not less than three Justices of the Court of Appeal. However in the case
of appeals from the Sharia Court of Appeal or Customary Court of Appeal, the Court of Appeal
is duly constituted it consists of at least three Justices of the Court of Appeal who are learned
in Islamic personal law or customary law, respectively.20

3.3.3. Federal High Court

The Federal High Court is established under section 249 of the 1999 Constitution. The Court
consists of a Chief Judge of the Federal High Court and such number of Judges as may be
prescribed by an Act of the National Assembly. Although the Federal High Court is one, it
usually divided into judicial divisions as may be determined by the Chief Judge of the Court

Appointment
The appointment of a person to the office of the Chief Judge of the Federal High Court shall
be made by the President on the recommendation of the National Judicial Council subject to
confirmation of such appointment by the senate.21 The appointment of a person to the office of
a Judge of the Federal High Court shall be made by the President on the recommendation of
the National Judicial Council.22 However, unlike the appointment to the office of the Chief
Judge of the Federal High Court, appointment as a Judge of the Court does not require approval
of the Senate. A person shall not be qualified to hold the office of a Judge of the Federal High

19
Section 245 Ibid
20
Section 247 Ibid
21
Section 250(1) 1999 Constitution
22
Section 250(2) Ibid

51
Court unless he is qualified to practice as a legal practitioner in Nigeria and has been so
qualified for a period of not less than ten years.

Where the office of the Chief Judge of the Federal High Court has become vacant or he has
become incapacitated to perform the functions of the said office, the President of the Federation
can single handedly appoint the most senior Judge of the Court as an Acting Chief Judge of
the Court without the recommendation of the National Judicial Council or approval of or
confirmation by the Senate. However, such temporary appointment shall elapse after a period
of three months except where the National Judicial Council otherwise recommends and in the
absence of such recommendation, the President of the Federation cannot re-appoint a person
whose temporary tenure of three months has elapsed.23

Jurisdiction
Notwithstanding anything to the contrary in this Constitution and in addition to such other
jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High
Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and
matters24 -
(a) relating to the revenue of the Government of the Federation in which the said
Government or any organ thereof or a person suing or being sued on behalf of the said
Government is a party;
(b) connected with or pertaining to the taxation of companies and other bodies established or
carrying on business in Nigeria and all other persons subject to Federal taxation;
(c) connected with or pertaining to customs and excise duties and export duties, including
any claim by or against the Nigeria Customs Service or any member or officer thereof,
arising from the performance of any duty imposed under any regulation relating to
customs and excise duties and export duties;
(d) connected with or pertaining to banking, banks, other financial institutions, including any
action between one bank and another, any action by or against the Central Bank of
Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange,
letters of credit, promissory notes and other fiscal measures:

23
Section 250(4) and (5) of the 1999 Constitution
24
Section 251(1) Ibid

52
 Provided that this paragraph shall not apply to any dispute between
an individual customer and his bank in respect of transactions
between the individual customer and the bank;
(e) arising from the operation of the Companies and Allied Matters Act or any other
enactment replacing the Act or regulating the operation of companies incorporated under
the Companies and Allied Matters Act;
(f) any Federal enactment relating to copyright, patent, designs, trade marks and passing-off,
industrial designs and merchandise marks, business names, commercial and industrial
monopolies, combines and trusts, standards of goods and commodities and industrial
standards;
(g) any admiralty jurisdiction, including shipping and navigation on the River Niger or River
Benue and their affluents and on such other inland waterway as may be designated by any
enactment to be an international waterway, all Federal ports, (including the constitution
and powers of the ports authorities for Federal ports) and carriage by sea;
(h) diplomatic, consular and trade representation;
(i) citizenship, naturalisation and aliens, deportation of persons who are not citizens of
Nigeria, extradition, immigration into and emigration from Nigeria, passports and visas;
(j) bankruptcy and insolvency;
(k) aviation and safety of aircraft.
(l) arms, ammunition and explosives;
(m) drugs and poisons;
(n) mines and minerals (including oil fields, oil mining, geological surveys and natural gas);
(o) weights and measures:
(p) the administration or the management and control of the Federal Government or any of its
agencies;
(q) subject to the provisions of this Constitution, the operation and interpretation of this
Constitution in so far as it affects the Federal Government or any of its agencies;
(r) any action or proceeding for a declaration or injunction affecting the validity of any
executive or administrative action or decision by the Federal Government or any of its
agencies; and
(s) such other jurisdiction civil or criminal and whether to the exclusion of any other court or
not as may be conferred upon it by an Act of the National Assembly:
Provided that nothing in the provisions of paragraphs (p), (q) and (r)
of this subsection shall prevent a person from seeking redress

53
 against the Federal Government or any of its agencies in an action
for damages, injunction or specific performance where the action is
based on any enactment, law or equity.

In addition to the above, the Federal High Court also has criminal jurisdiction with respect to
criminal causes and matters relating or emanating from the above subject-matter.25 Moreover,
the Court has criminal jurisdiction on treason, treasonable felony and allied offences.26 It
should be noted that in the exercise of its jurisdiction or powers as may be conferred upon it
by the Constitution or nay Act of the National Assembly, the Federal High Court shall have
and exercise all the powers of a State High Court.27

Constitution
For the purpose of exercising its jurisdiction, the Federal High Court is duly constituted if it
consists of one Judge of the Court.28The Chief Judge of the Federal High Court may make rules
for regulating the practice and procedure of the Federal High Court.29

3.3.4. National Industrial Court of Nigeria

The National Industrial Court of Nigeria also known as NICN is a court empowered
to adjudicate trade disputes, labour practices, matters related to the Factories Act, Trade
Disputes Act, Trade Unions Act, Workmen’s Compensations Act and appeals from the
Industrial Arbitration Panel and all other employment matters in Nigeria. As a specialized
Labor Court, all matters adjudicated by it are exclusive to the court and its decisions were
hitherto, subject only to appeal when certain conditions were met. Currently, appeals can be
made to the Court of Appeal by leave.

The Trade Dispute Decree No.7 of 1976 set up the National Industrial Court; initially consisting
of a president and four other members and a quorum of the president and two members. The
initial jurisdiction of the court set forth in the Decree No.7 was dealing with trade union
disputes and interpretation of collective bargaining agreements. From 1976 until 2006, the
operations of the court was limited and its judgement barely respected. It operated on matters

25
Section 251(3) Ibid
26
Section 251(2) Ibid
27
Section 252 Ibid
28
Section 253 Ibid
29
Section 254 Ibid

54
that emerged from arbitration or conciliatory labor disputes while it shared jurisdiction on most
matters with the state and Federal High Court.

In 2006, the legislature passed the National Industrial Court Act, 2006 (NICA), strengthening
the rules of the court and its ability to enforce judgement. The act also repealed parts of Decree
No.7 and reduced some of the jurisdiction of the High Courts that was shared with NIC. The
Constitution of the Federal Republic of Nigeria (Third Alteration) Act 2010 further enhanced
the jurisdiction of the court and established it as a superior court of record

The combined effects of section 7 of the NICA, 2006 and section 254C (1) of the Constitution
(Third Alteration) Amendment Act, 2010 are that the present jurisdiction of NIC is exclusive
to it and cannot be shared with other courts. The National Industrial Court shall have and
exercise jurisdiction to the exclusion of any other court in civil causes and matters:
(a). Relating to or connected with any labour, employment, trade unions, industrial relations
and matters arising from workplace, the conditions of service, including health, safety,
welfare of labour, employee, worker and matters incidental thereto or connected therewith;
(b). Relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade
Unions Act, Labour Act, Employees' Compensation Act or any other Act or Law relating
to labour, employment, Industrial relations, workplace or any other enactment replacing
the Acts or Laws;
(c). Relating to or connected with the grant of any order restraining any person or body from
taking part in any strike, lock-out or any industrial action, or any conduct in contemplation
or in furtherance of a strike, lock-out or any industrial action and matters Connected
therewith or related thereto;
(d). Relating to or connected with any dispute over the interpretation and application of the
provisions of Chapter IV of this Constitution as it relates to any employment, labour,
industrial relations, trade Unionism, employer's association or any other matter which the
Court has jurisdiction to hear and determine;
(e). Relating to or connected with any dispute arising from national minimum wage for the
Federation or any part thereof and matters connected therewith or arising there from;
(f). Relating to or connected with unfair labour practice or international best practices in labour,
employment and industrial relation matters;
(g). Relating to or connected with any dispute arising from discrimination or sexual harassment
at workplace;
55
(h). Relating to, connected with or pertaining to the application or interpretation of international
labour standards;
(i). Connected with or related to child labour, child abuse, human trafficking or any matter
connected therewith or related thereto;
(j). Relating to the determination of any question as to the interpretation and application of any-
(i). Collective agreement;
(ii). Award or order made by an arbitral tribunal in respect of a trade dispute or a trade
union dispute;
(iii). Award or judgment of the Court;
(iv). Term of settlement of any trade dispute;
(v). Trade union dispute or employment dispute as may be recorded in a memorandum of
settlement;
(vi). Trade union constitution, the constitution of an association of employers or any
association relating to Journal of Law, Policy and Globalization employment, labour,
industrial relations or work place;
(vii). Dispute relating to or connected with any personnel matter arising from any free trade
zone in the Federation or any part thereof;
(k). Relating to or connected with disputes arising from payment or nonpayment of salaries,
wages, Pensions, gratuities, allowances, benefits and any other entitlement of any
employee, worker, Political or public office holder, judicial officer or any civil or public
servant in any part of the Federation and matters incidental thereto;
(l). Relating to-
(i). Appeals from the decisions of the Registrar of Trade Unions, or matters relating
thereto or connected therewith;
(ii). Appeals from the decisions or recommendations of any administrative body or
commission of enquiry, arising from or connected with employment, labour, trade
unions or industrial relations; and
(iii). Such other jurisdiction, civil or criminal and whether to the exclusion of any other
court or not, as may be conferred upon it by an Act of the National Assembly;
(m). Relating to or connected with the registration of collective agreements.

56
3.3.5. State High Court
The High Court of a State is established under section 270 of the 1999 Constitution. The Court
consists of a Chief Judge of the State and such number of Judges as may be prescribed by a
Law of the House of Assembly. Although the State High Court is one, for the purposes of
administrative convenience, states are carved into judicial divisions. A State High Court is a
superior court of record and the highest court of first instance in each state.30

Appointment
The appointment of a person to the office of the Chief Judge of a State shall be made by the
Governor of that State on the recommendation of the National Judicial Council subject to
confirmation of such appointment by the House of Assembly.31 The appointment of a person
to the office of a Judge of the State High Court shall be made by the Governor on the
recommendation of the National Judicial Council.32 However, unlike the appointment to the
office of the Chief Judge of the State, appointment as a Judge of the Court does not require
approval of the House of Assembly. A person shall not be qualified to hold the office of a Judge
of the State High Court unless he is qualified to practice as a legal practitioner in Nigeria and
has been so qualified for a period of not less than ten years.33

Where the office of the Chief Judge of the State has become vacant or he has become
incapacitated to perform the functions of the said office, the Governor of the State can single
handedly appoint the most senior Judge of the Court as an Acting Chief Judge of the State
without the recommendation of the National Judicial Council or approval of or confirmation
by the House of Assembly. However, such temporary appointment shall elapse after a period
of three months except where the National Judicial Council otherwise recommends and in the
absence of such recommendation, the Governor cannot re-appoint a person whose temporary
tenure of three months has elapsed.34

Jurisdiction
It is worthy of note that jurisdiction of the a State High Court is no longer regarded as unlimited
jurisdiction as was the case under the 1979 Constitution. Its jurisdiction is expressly limited by

30
N.O. Osita, supra note 3
31
Section 271(1) 1999 Constitution
32
Section 271(2) Ibid
33
Section 271(3) Ibid
34
Section 271(4) and (5) of the 1999 Constitution

57
the jurisdiction of the Federal High Court. Hence, section 272 of the Constitution provides that
subject to the provisions of section 251(which provides for the jurisdiction of the Federal High
Court) and other provisions of this Constitution, the High Court of a State shall have
jurisdiction to hear and determine any civil proceedings in which the existence or extent of a
legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear
and determine any criminal proceedings involving or relating to any penalty, forfeiture,
punishment or other liability in respect of an offence committed by any person.35 The reference
to civil or criminal proceedings includes a reference to the proceedings which originate in the
High Court of a State and those which are brought before the High Court to be dealt with by
the court in the exercise of its appellate or supervisory jurisdiction.36

Constitution
For the purpose of exercising its jurisdiction, a State High Court is duly constituted if it consists
of one Judge of the Court.37The Chief Judge of a State may make rules for regulating the
practice and procedure of a State High Court.38
3.3.6. High Court of the Federal Capital Territory
The High Court of the Federal Capital Territory (FCT) is established under section 255(1) of
the 1999 Constitution. The Court is a replica of a State High Court for the FCT. It possesses
the judicial powers and jurisdiction of a State High Court in the FCT. The Court consists of a
Chief Judge of the High Court for the FCT and such number of Judges as may be prescribed
by an Act of the National Assembly.39 The Court is a superior court of record and the highest
court of first instance in FCT.

Appointment
The appointment of a person to the office of the Chief Judge of the High Court of the FCT shall
be made by the President on the recommendation of the National Judicial Council subject to
confirmation of such appointment by the Senate.40 The appointment of a person to the office
of a Judge of the said High Court shall be made by the President on the recommendation of the
National Judicial Council.41 A person shall not be qualified to hold the office of a Judge of

35
Section 272(1) 1999 Constitution
36
Section 272(2) Ibid
37
Section 273 Ibid
38
Section 274 Ibid
39
Section 255(2) Ibid
40
Section 256(1) 1999 Constitution
41
Section 256(2) Ibid

58
the High Court unless he is qualified to practice as a legal practitioner in Nigeria and has been
so qualified for a period of not less than ten years.42

Where the office of the Chief Judge of High Court of the FCT has become vacant or he has
become incapacitated to perform the functions of the said office, the President may single
handedly appoint the most senior Judge of the Court as an Acting Chief Judge without the
recommendation of the National Judicial Council or approval of or confirmation by the Senate.
However, such temporary appointment shall elapse after a period of three months except where
the National Judicial Council otherwise recommends and in the absence of such
recommendation, the President cannot re-appoint a person whose temporary tenure of three
months has elapsed.43

Jurisdiction
The Court is a replica of a State High Court for the FCT. It possesses the judicial powers and
jurisdiction of a State High Court in the FCT. Its jurisdiction is expressly limited by the
jurisdiction of the Federal High Court. Hence, section 257 of the Constitution provides that
subject to the provisions of section 251(which provides for the jurisdiction of the Federal High
Court) and other provisions of this Constitution, the High Court of the FCT shall have
jurisdiction to hear and determine any civil proceedings in which the existence or extent of a
legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear
and determine any criminal proceedings involving or relating to any penalty, forfeiture,
punishment or other liability in respect of an offence committed by any person.44 The reference
to civil or criminal proceedings includes a reference to the proceedings which originate in the
High Court of the FCT and those which are brought before the High Court to be dealt with by
the court in the exercise of its appellate or supervisory jurisdiction.45

42
Section 256(3) Ibid
43
Section 256(4) and (5) of the 1999 Constitution
44
Section 257(1) 1999 Constitution
45
Section 257(2) Ibid

59
Constitution
For the purpose of exercising its jurisdiction, a High Court of the FCT is duly constituted if it
consists of one Judge of the Court.46The Chief Judge of the FCT may make rules for regulating
the practice and procedure of the High Court.47

3.3.7. Sharia Court of Appeal of a State

Sharia Court of Appeal is a non-compulsory court established only for a state that requires it.
The Court is established under section 275 of the 1999 Constitution. The Court consists of a
Grand Kadi and such number of Kadi as may be prescribed by the House of Assembly of the
State.48

Appointment
The appointment of a person to the office of the Grand Kadi of the Sharia Court of Appeal of
a State shall be made by the Governor of that State on the recommendation of the National
Judicial Council subject to confirmation of such appointment by the House of Assembly.49 The
appointment of a person to the office of a Kadi of the Court shall be made by the Governor on
the recommendation of the National Judicial Council. A person shall not be qualified to hold
the office of a Kadi unless he is qualified to practice as a legal practitioner in Nigeria and has
been so qualified for a period of not less than ten years and has obtained a recognized
qualification in Islamic Law from an Institution acceptable to the National Judicial Council;
or, in the alternative, he has obtained a recognized qualification in Islamic Law from an
Institution approved by the National Judicial Council and has held such degree for not less than
ten years, and has considerable experience in the practice of Islamic Law or he is a
distinguished Islamic scholar.50

Where the office of the Grand Kadi of the Sharia Court of Appeal of a State has become vacant
or he has become incapacitated to perform the functions of the said office, the Governor of the
State can single handedly appoint the most senior Kadi of the Court as an Acting Grand Kadi
of the Court without the recommendation of the National Judicial Council or approval of or
confirmation by the House of Assembly. However, such temporary appointment shall elapse

46
Section 258 Ibid
47
Section 259 Ibid
48
Section 275(2) Ibid
49
Section 276(1) 1999 Constitution
50
Section 276(3) Ibid

60
after a period of three months except where the National Judicial Council otherwise
recommends and in the absence of such recommendation, the Governor cannot re-appoint a
person whose temporary tenure of three months has elapsed.51

Jurisdiction
The sharia Court of Appeal of a State shall, in addition to such other jurisdiction as may be
conferred upon it by the law of the State, exercise such appellate and supervisory jurisdiction
in civil proceedings involving questions of Islamic personal Law which the court is competent
to decide. Specifically, section 277(2) of the Constitution confers jurisdiction on the Court on
certain listed matters, and these include:
(a) any question of Islamic personal Law regarding a marriage concluded in accordance with
that Law, including a question relating to the validity or dissolution of such a marriage or
a question that depends on such a marriage and relating to family relationship or the
guardianship of an infant;
(b) where all the parties to the proceedings are muslims, any question of Islamic personal
Law regarding a marriage, including the validity or dissolution of that marriage, or
regarding family relationship, a founding or the guarding of an infant;
(c) any question of Islamic personal Law regarding a wakf, gift, will or succession where the
endower, donor, testator or deceased person is a muslim;
(d) any question of Islamic personal Law regarding an infant, prodigal or person of unsound
mind who is a muslim or the maintenance or the guardianship of a muslim who is
physically or mentally infirm; or
(e) where all the parties to the proceedings, being muslims, have requested the court that
hears the case in the first instance to determine that case in accordance with Islamic
personal law, any other question.

Constitution
For the purpose of exercising its jurisdiction, the Sharia Court of Appeal of a State is duly
constituted if it consists of three Kadis of the Court.52The Grand Kadi of the Court may make
rules for regulating the practice and procedure of the Court.53

51
Section 276(4) and (5) of the 1999 Constitution
52
Section 278 Ibid
53
Section 279 Ibid

61
3.3.8. Customary Court of Appeal of a State
Just as a Sharia Court of Appeal, a Customary Court of Appeal is also a non-compulsory court
established only for a state that requires it. The Court is established under section 280 of the
1999 Constitution. The Court consists of a President of the Customary Court of Appeal and
such number of Judges of the Court as may be prescribed by the House of Assembly of the
State.54

Appointment
The appointment of a person to the office of the President of the Customary Court of Appeal
of a State shall be made by the Governor of that State on the recommendation of the National
Judicial Council subject to confirmation of such appointment by the House of Assembly.55 The
appointment of a person to the office of a Judge of the Court shall be made by the Governor on
the recommendation of the National Judicial Council. A person shall not be qualified to hold
the office of a President or Judge of the Customary Court of Appeal unless he is qualified to
practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than
ten years and possesses considerable knowledge and experience in the practice of customary
law; or, in the alternative, the person possesses considerable knowledge and experience in the
practice of customary law subject to the opinion of the National Judicial Council.56

Where the office of the President of the Customary Court of Appeal of a State has become
vacant or he has become incapacitated to perform the functions of the said office, the Governor
of the State can single handedly appoint the most senior Judge of the Court as an Acting
President of the Court without the recommendation of the National Judicial Council or approval
of or confirmation by the House of Assembly. However, such temporary appointment shall
elapse after a period of three months except where the National Judicial Council otherwise
recommends and in the absence of such recommendation, the Governor cannot re-appoint a
person whose temporary tenure of three months has elapsed.57

54
Section 280(2) Ibid
55
Section 281(1) 1999 Constitution
56
Section 281(3) Ibid
57
Section 281(4) and (5) of the 1999 Constitution

62
Jurisdiction
A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction
in civil proceedings involve questions of Customary law.58 The Court shall exercise such
jurisdiction and decide such questions as may be prescribed by the House of Assembly of the
State for which it is established.59

Constitution
For the purpose of exercising its jurisdiction, the Customary Court of Appeal of a State is duly
constituted if it consists of three Judges of the Court.60The President of the Court may make
rules for regulating the practice and procedure of the Court.61

1. Which court has jurisdiction over the revenue of the government of the Federation? (a)
Supreme Court (b) Court of Appeal (c) Federal High Court (d) High Court
2. ………. has jurisdiction over all labour related matters (a) Supreme Court (b) Court of
Appeal (c) Federal High Court (d) National Industrial Court of Nigeria
3. Which court has jurisdiction over bank and customer relationship? (a) Supreme Court
(b) Court of Appeal (c) Federal High Court (d) High Court
4. Appeals from the decisions of the High Court lie to the ………….(a) Supreme Court
(b) Court of Appeal (c) Federal High Court (d) High Court

1. (c) Federal High Court

2. (d) National Industrial Court of Nigeria
3. (d) High Court
4. (b) Court of Appeal

58
Section 282(1) of the 1999 Constitution
59
Section 282(2) Ibid
60
Section 283 Ibid
61
Section 284 Ibid

63
3.4. Other Adjudicatory Bodies and Tribunal
Apart from the superior courts of record discussed above, each state of the Federation has
inherent power to establish other courts which are inferior courts.62 These courts include
Magistrate’s Court, Sharia Courts, Customary courts, Area courts, District courts, etc.

3.4.1. Magistrate’s and District Courts

Each state of the Federation has its own magisterial court system. The Courts are established
under the respective Magistrate’s Court Law in the Southern states and District Court Law in
the Northern states. In the Northern part of the country, they are known Magistrate’s court
when they sit over criminal cases and as District Courts when they sit over civil matters.
However in the Southern part of the country, they are known as Magistrate’s Courts
irrespective of the criminal or civil nature of the cases over which they sit.
Magistrate’s Courts are inferior courts of record. Their jurisdiction is limited both as to nature
and value of the subject matter.63 They are also courts of summary jurisdiction in that they do
not follow the elaborate procedures of the High Courts in their proceedings.64

3.4.2. Customary Courts

Customary courts are usually governed by the Customary Courts Law of each state. The court
usually consists of a President and other members of the Court as may be determined by the
establishing law. A customary court has both civil and criminal jurisdiction. Jurisdiction of the
court is unlimited in the sense that it is not subjected to limitation with regards to the value of
the subject matter it can entertain. Its jurisdiction covers matrimonial causes and other matters
between persons married under the customary law and suits relating to the guardianship and
custody of children under customary law. Its criminal jurisdiction is limited to offences against
local government bye-laws and contempt in facie curie. The court has no jurisdiction over
capital offences such as homicide, rape, treason, etc.

3.4.3. Area Courts

In the Northern part of the country, the counterpart of Customary court is the Area Court. Its
jurisdiction covers matrimonial causes and other matters between persons married under the
customary law and suits relating to the guardianship and custody of children under customary

62
See section 6(4) 1999 Constitution
63
N.O. Osita, supra note 3
64
Ibid

64
law. The court in general is subject to the general supervisory role of the High Court. However,
the High Court is not empowered to issue orders of mandamus, certiorari and prohibition on
Area courts.

3.4.4. Juvenile Courts

Juvenile courts are special courts established for the trial of young offenders and for the welfare
of the young persons. The court is constituted by a magistrate sitting with other members
appointed by an appropriate authority. As a general rule, whenever a juvenile court is to hear
charges against children or young persons, the court must sit either in a different building or
room from that in which ordinary sittings are held, or different days or at different times from
those at which he sits as a magistrate’s court. This is to prevent children and young persons
from associating with adult offenders. Also, hearings in juvenile courts are usually closed to
the public. The law also provides for preferential treatment in terms of punishment for children
and young persons. An order for imprisonment of a child must no be made and a sentence of
imprisonment must not be imposed on a young person if he can be suitably dealt with in any
other way. A person who was under the age of 17 years as at the time of the commission of the
offence must not be sentenced to death. Where the usual punishment for the offence committed
is death sentence, the court must order that the young person be detained at the pleasure of the
Governor.

3.4.5. Election Tribunals

There are two types of election tribunals viz: (1) National Assembly Election Tribunals that
deal with petitions from the Senate and House of Representatives elections and (2)
Governorship and Legislative Election Tribunals that deal with petitions from the
Gubernatorial and State House of Assembly elections. Election tribunals are set up by the
President of the Court of Appeal in consultation with the Chief Judges of the High Courts of
the states.

Section 285 of the Constitution provides that there shall be established for the Federation one
or more election tribunals to be known as the National Assembly Election Tribunals which
shall, to the exclusion of any or tribunal, have original jurisdiction to hear and determine
petitions as to whether -
(a) any person has been validly elected as a member of the National Assembly;
(b) the term of office of any person under this Constitution has ceased;
65
(c) the seat of a member of the Senate or a member of the House of Representatives has vacant;
and
(d) a question or petition brought before the election tribunal has been properly or improperly
brought.

There shall be established in each State of the Federation one or more election tribunals to be
known as the Governorship and Legislative Houses Election Tribunals which shall, to the
exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as
to whether any person has been validly elected to the office of Governor or Deputy Governor
or as a member of any legislative house. The quorum of an election tribunal established shall
be the Chairman and two other members.

3.5. Doctrine of Stare Decisis

Stare decisis is a legal principle by which judges are obligated to respect the precedent
established by prior decisions. The words originate from the phrasing of the principle in
the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the
undisturbed". In a legal context, this means that courts should abide by precedent and not
disturb settled matters. The principle can be divided into two components:
1. A decision made by a superior court, or by the same court in an earlier decision, is
binding precedent that the court itself and all its inferior courts must follow.
2. A court may overturn its own precedent, but should do so only if a strong reason exists
to do so, and even in that case, should be guided by principles from superior, lateral,
and inferior courts.
The second principle, regarding persuasive precedent, reflects the broad precedent guidance a
court may draw upon in reaching all of its decisions

When a decision is made by a higher court, the lower courts must follow it. Once a case is
decided, it establishes a precedent, or a judicial decision that should be followed when a similar
case comes to court. To serve as precedent for a pending case, a prior decision must have almost
the same question of law and almost the same facts.

66
 Summary

In this module, attempts have been made to examine and discuss various classes, hierarchy and
jurisdiction of courts in Nigeria. A distinction is made between superior and inferior courts;
courts of record and courts other than courts of record; regular courts and special courts or
tribunals. Superior courts include the Supreme Court, Court of Appeal, State High Court, High
Court of the FCT, Federal High Court, Sharia Court of Appeal and Customary Court of Appeal.
The Constitution of the Federal Republic of Nigeria, 1999,(as amended), makes provisions for
the appointments of judges into these courts and jurisdiction of the courts.

3.7. Self- Assessment Questions

1. Discuss appointment of judges, constitution and jurisdiction of at least 3 superior courts of
records in Nigeria.

2. Examine the doctrine of stare decisis as it relates to hierarchy of courts in Nigeria.

3. Identity and discuss at least 2 inferior courts in Nigeria.

4. Critically discuss the jurisdiction and peculiarities of the National Industrial Court of
Nigeria

5. Discuss the Juvenile Court and justify the needs for the court in Nigeria.

References
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Akintunde Obilade : The Nigerian Legal System (1979, Spectrum)
3. J.O. Asein : Introduction to Nigerian Legal System (1998, Sam Bookman Publishers)

67
 STUDY SESSION 4

INTERPRETATION OF STATUTES

Introduction
The Judiciary, as the third arm of government, through the court has the primary duty to
interpret and apply the law. Laws made by the Legislature are left to the courts to determine
the intentions of the law makers while interpreting the said law. As simple as this duty may
look, it becomes difficult upon the consideration of the fact that words assume particular
meanings when put in context. A word usually has more than one meaning, and sometimes the
law makers may be erroneous in choosing the appropriate words while enacting the law. Thus,
the duty of interpreting the law becomes challenging bearing in mind that court is to find out
the true intentions of the law maker but nobody knows the intents of any person’s heart, not
even the devil.

More challenging is the fact that, apart from being confronted by words of ambiguous nature,
sometimes, the court discovers visible gaps in the wording and making of relevant legislation.
Although it generally accepted that it is outside the limit of the court to fill in such gaps as
doing so may amount to hijacking the primary function of the Legislature, reality sometimes
depicts instances where the court in the quest of deciphering the intention of the law maker
may end up filling the obvious gaps in the law. For the purposes of interpreting the law, three
major principles have been developed viz: literal rule, golden rule and mischief rule.

Learning Outcomes for Study Session 4

1. At the end of this session, learners should be able explain various interpretation rules
2. Learners should be able to discuss the significance of the role of the court in interpreting
the statute
3. Learners should be able to explain basic rules of interpretation

4.2 Literal Rule

Under this rule of interpretation the Court interprets the statutes in a literal and ordinary sense.
They interpret the words of the statute in a way that is used commonly by all. It is incumbent
on the court to use the grammatical meaning. Intention of the law maker is best found in the
68
ordinary and natural meaning of the words. This rule explains what the law is rather than
explaining what the law means. When interpreting a statute, the court generally applies the
literal rule first before applying any other rules of interpretation. In literal rule, the words in a
statute are given its plain, ordinary, and literal meaning. While applying the literal rule, the law
is read word by word and without diverting from its true meaning. It is immaterial that hardship
would result from application of the literal rule. In R v. Bangaza65 the Federal Supreme Court
had to interprete section 319(2) of the Criminal Code which provided that “Where an offender
who in the opinion of the court has not attained the age of seventeen years has been found
guilty of murder, such offender shall not be sentenced to death but shall be ordered to be
detained…” The court found that it was clear from the wording that the relevant age was at the
time of the conviction and not the age of commission of the offence. Hence, where the offender
under that provision was under the age of 17years when he committed the offence, he must be
sentenced to death, unless verdict was delivered before he attained 17years. It should be noted
however that the principle that the wording of a statute is to be construed literally is only a
general rule which must be applied only where the wording is clear and unambiguous.

1. ……………… rule interprets in an ordinary sense (a) literal (b) simple (c)ordinary
(d)all of the above
2. Which of the following is not a rule of interpretation? (a) literal rule (b)golden rule
(c)mischief rule (d)mischievous rule
3. When interpreting a statute, the first interpretation rule applied by the court is…….
(a) literal rule (b)golden rule (c)mischief rule (d)mischievous rule
4. When applying the literal rule of interpretation, it is immaterial that hardship may result
from the application (a)true (b) false

1. (a) literal rule

2. (d) mischievous rule
3. (a) literal rule
4. (b) true

65
(1960) 5 F.S.C. 1

69
4.3. Golden Rule
The golden rule of statutory interpretation may be applied where an application of the literal
rule would lead to an absurdity. The rule was defined by Lord Wensleydale in the Grey v
Pearson case66 as: “The grammatical and ordinary sense of the words is to be adhered to unless
that would lead to some absurdity or some repugnance or inconsistency with the rest of the
instrument in which case the grammatical and ordinary sense of the words may be modified so
as to avoid the absurdity and inconsistency, but no farther.”

So, The Golden Rule is a modification of The Literal Rule to be used to avoid an absurd
outcome.

The Golden Rule was used in the R v Allen case.67 In this the defendant was charged with
bigamy (s.57 of offences against the Person Act 1861) which, under statutes states: ‘whosoever
being married shall marry any other person during the lifetime of the former husband or wife
is guilty of an offence’. Under the Literal Rule, bigamy would be impossible because civil
courts do not recognise second marriages, so The Golden Rule was applied to determine that
the word ‘marry’ should be seen as ‘to go through ceremony’ and the conviction was upheld.
Similarly in R v. Princewell,68 the court held that the word “marries” in section 370 of the
Criminal Code was not to be construed as contracting a valid marriage but as going through a
form of marriage known or recognized to law. To hold otherwise would have negated the
intention of the Legislature. In Awolowo v. Federal Minister of Internal Affairs69, the court
had to interpret section 21(5)(c) of the Constitution which provided that an accused person was
“entitled defend himself in person or by legal representatives of his own choice”. The court
held that under the provision the legal representative if chosen from outside the country must
be a person who could enter the country as of right. He must also be a person who was not
under any disability.

4.4. Mischief Rule

In order to interpret statute properly, it is necessary to consider how the law stood when the
statute to be construed was passed; what the mischief was for which the old law did not provide

66
(1857) 6 HL Cas 61
67
(1872) LR 1 CCR 367
68
(1963) 2 All N.L.R 31
69
(1962) L.L.R. 177

70
and remedy provided by the statute to cure the mischief.70 The Court is then to construe the
statute in such a manner as to suppress the mischief and advance the remedy.71

This rule gives judges the most discretion of all. The four principles to follow were expressed
in Heydon’s case72 which concerned a conflict over legal action against Heydon for trespassing
on certain land:
i. What was the common law before the making of the Act?
ii. What was the mischief and defect for which the common law did not provide?
iii. What remedy Parliament hath resolved and appointed to cure the disease of the
Commonwealth?
iv. The true reason of the remedy; and then the office of the Judges is to make such
construction as shall suppress the mischief and advance the remedy.
The rule is intended to rectify ‘MISCHIEF’ in the statute and interpret the statute justly. The
mischief Rule uses common law to determine how the statute is interpreted.

In Smith v Hughes,73 the defendants were charged under the street offences act (1959) with
soliciting in a public place. The prostitutes were soliciting from windows, technically not a
public place. The Mischief Rule was applied to interpret that the prostitutes were doing what
the statute was trying to abolish so they were convicted.

Literally “of the same kind.” A rule used in statutory interpretation that presumes that a
general term following a list of specific terms will be limited to the more specific term — in
other words, the general term will be defined to be “of the same kind” as the more specific
preceding terms.74 Hence, if in an enactment or document a general word follows specific or
particular words of the same nature as itself, the general word takes its meaning from them,
and is held to be restricted to the same genus as those more limited words, unless there is
something to show that a wider a sense is intended to be borne by the general word.75 In the
case of Nasr v. Bouari76, the question was whether premises used partly as living
accommodation and partly as a night club were premises within the meaning of section 1(1) of

70
A.O. Obilade 60, supra note 1
71
Ibid
72
(1584) 76 ER 637
73
(1870-71) LR 6 QB 597
74
www.irwinlaw.com › cold › ejusdem_generis. Last accessed 13/04/2020
75
Allen v. Emerson (1944) K.B. 362
76
(1969) 1 All N.C.R. 35

71
the Rent Control (Lagos) Amendment Act, 1965. The Act defined premises as a “building of
any description occupied or used by persons for living or sleeping or other lawful purposes…”
The court had to determine whether “other lawful purposes” meant any lawful purposes other
than premises for living and sleeping. The court held that the premises used partly as a night
club were not premises within the meaning of the provision notwithstanding that they were also
partly used for living.

1. ………………. rule is applied where literal rule might lead to manifest absurdity
(a)golden (b)literal (c) mischief (d) mischievous
2. ……………….. rule is a modification of the literal rule of interpretation (a)golden
(b)literal (c) mischief (d) mischievous
3. The rule of interpretation that considers, among other things, how the law stood at the
time the statute to be interpreted was passed is called ……………..(a)golden (b)literal
(c) mischief (d) mischievous
4. ……………….rule employs common law to determine how the statute is interpreted
(a) golden (b)mischief (c)literal (d) all of the above

1. (a) golden rule

2. (a) golden rule
3. (c) mischief rule
4. (b) mischief rule

4.6. Ratio Decendi and Obiter Dictum

This Latin term literally loosely translates as the reason for the decision. The ratio decidendi of
a case is not the actual decision, or order, like ‘guilty’ or ‘the defender is liable to pay
compensation’. The ratio decidendi establishes a precedent, which is the rule of law used by
the judge or judges in deciding the legal problem raised by the facts of the case. This rule,

72
which is an abstraction from the facts of the case, is known as the ratio decidendi of the case
and as such, it is binding on all lower courts.

In a judgment, any statement of law that is not an essential part of the ratio decidendi is, strictly
speaking, superfluous. Those statements are referred to as obiter dictum. This is Latin for ‘a
word said while travelling’ or ‘along the way’ (obiter dicta in the plural). Although obiter
dicta statements do not form part of the binding precedent, they can be persuasive authority if
taken into consideration in later cases. That is, if the judge in the later case considers it
appropriate to do so.

The division of cases into these two distinct parts is an analytical tool. Unfortunately, judges
do not actually separate their judgments into the two clearly defined categories and it is up to
the person reading the case to determine what the ratio is. This is a bit like listening to, or
reading, a speech made by a politician or a sports team manager and trying to identify what the
most important part of the speech was. In some cases this is no easy matter, and it may be made
even more difficult in cases where there are three or five judges and where each of the judges
delivers their own lengthy judgment so there is no clear single ratio.

Summary

This study session attempts to analyse various rules of interpretation of statutes. The major
rules are literal, golden and mischief rules of interpretation. The literal rule adheres to the
ordinary, natural and grammatical meaning of the words of the statute, especially where there
is no ambiguity. However, where ordinary meaning may result in unintended absurdity, the
court usually adopts the golden rule of interpretation. The golden rule is otherwise known as
purposive rule of interpretation and it allows the court to find out the true intentions of the law
makers in interpreting the law. Mischief rule seems to bestow some measure of discretion on
the court in interpreting the statute. The court is at liberty to find out the mischief in the old
law which the new law was meant to suppress and advance the appropriate remedy.

4.8 Self-Assessment Questions

1. Critically analyse the literal rule of interpretation
2. Examine the golden rule of interpretation
3. With the aid of decided cases, discuss the mischief rule of interpretation.

73
Reference

1. Akintunde Obilade : The Nigerian Legal System (1979, Spectrum)

2. J.O. Asein : Introduction to Nigerian Legal System (1998, Sam Bookman Publishers)

74
 STUDY SESSION 5

CRIMINAL AND CIVIL PROCEDURE

Introduction

Civil law and criminal law serve different purposes. The primary purpose of civil law is to
resolve disputes and provide compensation for someone injured by someone else’s acts or
behaviour. The primary purpose of criminal law is to prevent undesirable behaviour and punish
those who commit an act deemed undesirable by society.

In civil law, it is the injured person who brings the lawsuit. By contrast, in criminal law, it is
the government that files charges. The injured person may file a complaint with the law
enforcement agency, but it is the government that decides whether criminal charges should be
filed. A violation of criminal law is considered a crime against the state and is a violation of
public law rather than private law. Civil law cases are concerned only with private law. In some
instances, a person may be entitled to file a complaint, trusting the legal system to punish the
wrongdoer with prosecution, while bringing a civil lawsuit to receive compensation for the
damages done by the wrongdoer.

Another key difference between civil and criminal law is the standards of proof required to
reach a verdict. A plaintiff need only prove his civil law case by a “preponderance of evidence.”
This standard requires that the plaintiff convince the court that, based on the evidence presented
at trial, it is “more likely than not” that the plaintiff’s allegation is true.

In contrast, the standard of proof is higher in criminal law proceedings. The state must prove
their case “beyond a reasonable doubt.” The reason for this higher standard is because a
person’s freedom is at stake, and the fundamental belief that convicting an innocent person is
worse than allowing a guilty person to go free.

It should be noted that while prosecution of a crime is through criminal procedure/proceeding

enforcement of a civil wrong is through civil proceedings/procedures. The two procedures are
not coterminous.

75
 Learning Outcomes for Study Session 5
1. At the end of this study session, students should be able to differentiate between civil
and criminal procedure
2. Students should be able to discuss various classification of offences
3. Students should be able to explain different methods of commencing an action in Court

5.1 Classification of Offences and Who Enforces

There are different kinds of offences provided for in the Criminal Codes in Nigeria. It is not
only the Criminal Codes that provide for offences in Nigeria. There are provisions for offences
and punishments in various statutes including the Companies and Allied Matters Act 1990. The
general law enforcement agency to deal with the arrests and investigations of the persons that
perpetrate such offences is the Police. However, with time and for certain reasons the
government has proliferated the agencies for the sake of specialization and speedier
prosecution. Therefore when it comes to sale of fake and harmful drugs, the National Food,
Drugs Agency Commission (NAFDAC), or smuggling, Customs and Excise, or economic
crime, Economic and Financial Crime Commission (EFCC), or corruption by public officers,
Independent Corrupt Practices Commission (ICPC), or dangerous drugs, National Drug Law
and Enforcement Agency (NDLEA), or acts of threat to national security, Department of State
Services (DSS), etc.

5.2 Procedure from Arrest, Investigation, Prosecution and Trial

The criminal justice system and administration in Nigeria is based on the philosophy of crime
control theory. It is in contrast to the second known as crime prevention theory. Crime control
theory aligns with the principle of adversarial system of justice which is adopted by common
law jurisdictions. Crime prevention is more inclined to the justice system of the civil law
jurisdictions in Continental Europe.
a) Presumption of Innocence: The constitutional principle that supports the adversarial and
crime control jurisdiction is the principle of presumption of innocence until proven guilty.
What the crime control theory or philosophy of the adversarial justice system aims at is to
prevent crime by dealing with crimes committed in the hope of deterrence against future
occurrence of the offence by all. In a crime prevention philosophy driven justice system of
civil law jurisdictions the defendant is presumed guilty until he proves otherwise.

76
b) Commission of offence: Nigeria’s criminal justice therefore waits until crime is committed
before setting the instruments of state in motion to deal with the crime. Acting otherwise
would breach the constitutional right of the suspect that he is presumed innocent until
proven guilty. That is why it protects the rights of the defendant until he is tried in court
and found guilty.
c) Arrest and Investigation: When a crime is committed the first line of state response
generally is the police or other appropriate law enforcement agency for the specific type of
crime committed arrests the suspect. For example, if it involves narcotic drugs, the officers
of the National Drug Law Enforcement Agency (NDLEA) are expected to effect the arrest
or where it involves trafficking of persons, the NAPTIP will be the most appropriate to
effect arrest. Upon arrest the Constitution provides that the arrested person be confronted
with his offence and allowed to have a lawyer of his choice to defend him. The police or
the law enforcement agency involved will conduct investigation to prepare sufficient
evidence to prosecute the suspect. Ideally the file containing the investigation should go to
the office of the Attorney-General who delegates his powers to the Director of Public
Prosecution (DPP) to do a review of the file for advisory/decision as to whether the suspect
has a case to answer or not. By virtue of section 211 of the Constitution the Attorney –
General has the unquestionable power of nolle prosequi to decide whether to prosecute or
not. Other relevant agencies including the EFCC and the ICPC ideally ought to obtain the
advice of the Attorney-General after investigation otherwise obtain fiat from the Attorney-
General to decide whether to prosecute or not first.
d) Arraignment and Prosecution: Where the police or the relevant agency decides there is
sufficient evidence to prosecute the suspect, the charge is filed in court and the suspect, at
this point now defendant, shall be arraigned in the appropriate court. Arraignment involves
reading to him his offence and taking his plea as to whether guilty or not guilty. He is
entitled to bail after his plea unless it involves a crime which attracts capital punishment or
other serious and exceptional considerations.
e) Bail and Trial: After arraignment and conclusion of bail issues the action is set down for
trial in which case the prosecution presents his case against the defendant through witnesses
who may be cross-examined by the defendant or his lawyer. If the defendant wishes he
calls his own witnesses and states his case after which the prosecution will cross-examine
if he wishes also. The prosecution must prove his case against the defendant beyond
reasonable doubt but the defendant merely needs to prove on balance of probability. After

77
 trial the prosecution and defence adopt their final addresses and the court hands down the
judgment.

1. ……………..is the primary purpose of civil law (a) compensation (b)punishment

(c)death (d)removal from the society
2. ……………is the primary purpose of criminal law (a)compensation (b)damages
(c)punishment (d)death
3. Preponderance of evidence applies to ………… law (a)criminal (b)evidence
(c)common (d)civil
4. In a criminal matter, the prosecution must prove his case (a)beyond all shadow of
doubts (b) beyond any iota of doubts (c) beyond reasonable doubts (e)on preponderance
of evidence.

1. (a) compensation
2. (c) punishment
3. (d) civil
4. (c) beyond reasonable doubts

5.3 Classification of Civil Wrong

A wrongful act by one person against another for which the other person may recover damages
in a lawsuit. Generally speaking, civil wrong includes non-violent interactions between
individuals and organizations. There are various types of civil wrong. They include Contract,
Tort, Property, Family Law, Consumer Protection, Entertainment Law, Employment Law, Tax
Law, Sports Law, etc.

Contract law deals with agreements between two or more parties, each of which is obligated to
hold up their portion of the agreement. Tort law is a branch of civil law that is concerned with
personal injury and civil wrongdoing. A tort is a civil wrong, done by one person or entity to

78
another which results in injury or property damage, and frequently involves monetary
compensation to the injured party.

Property law covers both personal property and real property. Personal property can be
tangible, such as jewelry, animals, and merchandise, or intangible such as patents, copyrights,
stocks, and bonds. Real property refers to land and anything built on it that cannot be easily
removed, as well as anything under the surface of the land, such as oil and minerals.

Family law is the branch of civil law that deals with marriage, divorce, annulment, child
custody, adoption, birth, child support, and any other issues affecting families. This branch of
civil law is unique in that there is not necessarily a person who committed a civil wrong and
the petitioner is mostly not suing for monetary compensation for a wrong suffered. However,
the family court gets involved with dividing up property and finances after a divorce,
establishing child custody, child support, and spousal support among other things. Some newer
areas that fall under the family law umbrella are same-sex marriage, artificial conception,
surrogate motherhood, in vitro fertilization, and palimony.

5.4 Civil Litigation Procedure

Civil procedure is the process by which a person whose legal right and interest has been
adversely affected may have recourse to the court of law for the resolution or determination of
the controversy or disputes.77 It consists mainly of rules of practice and procedure applying to
conflicts involving disputes in which legal rights and legal issues are in issue.78

5.4.1. Parties
The term “party” refers to a person by or against whom a legal a legal suit is brought whether
in law or in equity.79 A party may either be a plaintiff/Claimant or defendant, whether
composed of one individual or more, and whether natural or legal persons, but all others who
may be affected by the suit indirectly or consequently are persons interested and not parties.80
Only legal persons can sue and be sued in their own names.81 A legal person can be a natural

77
J.O. Asein, supra note 5
78
Ibid
79
Fawehinmi v. NBA (No.1) (1982)3 NWLR (Pt.105)494
80
Ibid
81
N.O. Osita, supra note 3

79
or an artificial person.82The law ascribes legal personality to human beings, incorporated
companies, corporation sole perpetual succession, trade unions, partnership, friendly societies,
etc.83

5.4.2. Commencement of Action

A suit may be commenced by a writ of summons, originating summons, petition or an
originating motion.

Writ of Summons
This is a command by the state to the defendant whose name and address are inserted in the
summons that he must enter appearance to the writ on a particular day or a given time, to answer
to the suit of the plaintiff, in default of which the court may proceed to enter judgment against
him.84 Generally, every action is to be commenced by a writ of summons especially where the
facts of the case are likely to be disputed.

Originating Summons
This is one of the modes of commencing a civil proceeding. An action is commenced by an
originating summons when it is required by a statute or a dispute, which is concerned with
matters of law, is unlikely to be any substantial dispute of fact. The proceedings are usually
based on affidavit evidence.

Petition
Petitions are used to commence certain civil proceedings such as divorce, election matters and
winding up proceedings. They are special prayers framed in a special form and supported with
facts.85

Application/Originating Motions
Applications or originating motions are required to commence certain civil proceedings such
as actions for the prerogative order of mandamus, certiorari, prohibition and habeas corpus.

82
Ibid
83
Ibid
84
Ibid
85
J.O. Asein, supra note 5

80
5.4.3. Pleadings
Pleadings constitute an essential aspect of civil litigation. Pleadings help to define or limit with
clarity and certainty the real matters/issues in controversy between the parties and to give them
notice of the case to be met in Court to enable them prepare their case before hand in order not
to be taken by surprise. A pleading is a formal written statement of a party's claims or defenses
to another party's claims in a civil action. The parties' pleadings in a case define the issues to
be adjudicated in the action. A statement of claim is filed by the plaintiff in which he sets out
the facts he will rely on in order to prove his case. The defendant will on receipt of the statement
of claim file a statement of defence in which he sets out the facts he may be relying upon for
any defence he has against the plaintiff’s claims. After receipt of the statement of defence by
the plaintiff, the plaintiff may decide to file a reply to the defence. A reply is only necessary
for meeting new facts raised by the defendant in the statement of defence.

5.4.4. Trial
Before proceeding to trial proper, it is now mandatory for parties to explore amicable settlement
at pre-trial conference. It involves a meeting with the High Court Judge to determine whether
the matter can be settled out of court, e.g. through ADR (Alternative Dispute Resolution)
mechanism. The main aim of the Pre-trial Conference is to identify clearly the issues in dispute
and promote amicable settlement of the matter. Within fourteen days after close of pleadings,
the plaintiff is expected to apply to the Judge to issue a Pre-trial Conference Notice. Based on
this application, the Judge will issue the parties and their lawyers a Pre-trial Conference Notice
accompanied with a Pre-trial information sheet. The Pre-trial Conference should be completed
within three (3) months of its commencement, although the time can be extended upon
application to the Chief Judge. After the Pre-trial Conference the Judge issues a Report, which
shall guide the subsequent course of the proceeding. All preliminary matters including
amendments to the claims are concluded during the Pre-trial Conference.86
Where parties are unable to reach amicable settlement, then the case file together with the
Report of the Pre-trial Conference is sent back to the Registry for re-assignment to a trial Judge.
Hearing Notices of the trial date are then issued to the parties through their counsel.

86
https://www.unodc.org/documents/nigeria/publications/courtusersguides/Court_User_Guide_Basic_
Civil_Procedure_No_5_PRINT.pdf. Last accessed 14/04/2020

81
At trial, the plaintiff opens his case first. He and his witness(es) (if any) will give evidence.
The defendant or his lawyer would cross-examine them. Thereafter the defendant will open his
case, give evidence, call his witness(es) to give evidence on his behalf, and the plaintiff’s
lawyer cross-examines each accordingly. The parties or their lawyers will make their final
statements. The Judge will either now proceed to deliver a written judgement or fix a date for
judgement. Anyone can obtain a certified true copy of the judgement by completing an
application and paying a small fee. You can appeal within a period of thirty (30) days. If you
are considering to appeal, it is advisable to make an application for a stay of execution (court
approval that judgement should not be enforced) immediately, otherwise the judgement can be
enforced.87

Where losing party does not comply with the judgement, you can apply for enforcement by the
court upon payment of enforcement fee. A common example of court enforcing judgement is
by sending a court official (sheriff) assisted by the police to attach/confiscate the property of
the party who lost (judgement debtor). The court can instruct a bank in writing to pay your
monetary compensation (judgement debt) from the account of the losing party88

1. Which of the following is not a type of civil law? (a) family law (b)contract
law(c)property law (d)law of murder
2. A suit may be commenced by all but one (a)writ of summons (b) original summons (c)
petitions (d)originating motion
3. ………….is used to commence a suit in divorce (a)petition (b)divorce letter (c)court
order (d) motion
4. It is mandatory to explore amicable settlement at pre-trial conference (a) true (b) false

1. (a) law of murder

2. (b) original summons
3. (a) petition
4. (a) true

87
Ibid
88
Ibid

82
5.5 Arbitration, Mediation and Conciliation
Disputes are part of human existence as social beings. Human interactions in different facets
of life inevitably breed disputes. Hence, various means of dispute resolution have been
developed overtime to address issues of conflicts in our day to day activities. In resolving their
differences, parties may adopt various means of dispute resolution such as litigation,
arbitration, negotiation, mediation, or conciliation. Sometimes, parties may have to combine
two or more of these mechanisms in order to arrive at an amicable settlement. Conventionally,
parties readily resort to litigation for dispute resolution. However, tardy litigation process
sometimes does not place the parties in satisfactory positions as parties at the end of the process
do not experience the proverbial promised “happy ending.” This is more so in commercial
transactions. Individuals and corporate entities in commercial disputes more often than not
desire justice and at the same desire the preservation of business relationship between them at
the end of the dispute resolution process which mostly is not the case in litigation. Therefore,
parties in commercial disputes are usually amenable to compromises leading to amicable
settlement and ultimately preservation of business relationship between the parties.

Generally, arbitration is considered as a more effective alternative to litigation. Arbitration is

faster, less costly and flexible in its process and procedure. The marked increase in commercial
transactions which invariably has led to increase in the rate of disputes among parties,
individuals and corporate firms have looked for alternative means to resolve disputes. It is
pertinent to mention that because of the nagging and unsolved problems arising from
commercial transactions and the inability of litigation to fully satisfactorily address them,
arbitration mechanism has become an imperative alternative.

Arbitration is defined as the investigation and determination of a matter or matters of difference

between contending parties by one or more unofficial persons chosen by the parties and called
arbitrators or referees.89 The strength of arbitration lies in the enabling law that confers it with
the sanction of enforcement once a final award is made in a judicious manner.90It is an
alternative mechanism for determination of disputes which usually occurs in private, subject to
the agreement of the parties91. An arbitral process is based on the written agreements between

89
The Black Law dictionary
90
Stabilini Visinoni Ltd Vs Mallinson & Partners Ltd (2014) LPELR-23090 (CA) where his Lordship Augie
J.C.A quoted Commercial Arbitration in Nigeria. 2nd Ed. By Fabian Ajogwu, SAN
91
Berstein 1998

83
parties which states that if a dispute arises between the parties it shall be decided by a competent
arbitral tribunal and their decision binds the parties92. Arbitration is basically used in resolving
commercial disputes.

Generally speaking parties may typically agree on the number of arbitrators that would preside
over the process. However, in situations where no such provision is captured in the requisite
agreement, the number of arbitrators shall be deemed to be three. In addition, each party shall
choose one arbitrator and the two parties shall agree and choose the third arbitrator. In
circumstances, where the parties fail to appoint the arbitrator, the court on a written application
by either of the disputing parties shall appoint an arbitrator or same by an appointing body such
as the Chartered Institute of Arbitrators.93

5.5.1. Arbitration and Other Alternative Dispute Resolution Mechanisms

Alternative Dispute Resolution (ADR) is a collection of processes used for the purpose of
resolving conflicts or disputes informally or confidentially. These various processes empower
parties to develop and seek mutually acceptable solution to resolving their conflicts or disputes.
Disputants are expressly enjoined by the law and court rules to always explore ADR before
resorting to litigation. The Federal High Court Civil (Procedure) Rules 2009, Or. 18 r. 1 (1)
provides “when a matter comes before the court for the first time, the Judge shall in the
circumstances where it is appropriate, grant to the parties not more than 30days within which
parties may explore possibilities for settlement of disputes”. There are other ways of settling
disputes other than litigation of which Arbitration is one. The others include Mediation,
Negotiation, Conciliation, Valuation and Certification.

5.5.2. Arbitration
Arbitration involves a procedure where disputes by way of mutual agreement submit their
dispute or conflict to one or more persons to resolve and make a binding decision on the dispute.
Decision reached by the arbitrator is known as an award and it is binding on both parties. The
need for disputants to seek for a harmonious way of resolving their disputes by de-emphasising
legal formality, technicality and rigidity has pave way for common acceptance of arbitration as
an effective alternative to litigation. There is now a general consensus that the traditional way

92
Olujobi, Olusola Joshua, “Commercial Dispute Resolution: Has Arbitration Transformed Nigeria Legal
Landscape?” ,2018, Journal Of Advanced Research In Law And Economics, P.9.
93
ibid

84
of litigating by fighting and having a third declare one party a winner and the other a loser no
longer reflects a true picture of justice to anyone.94

5.5.3. Negotiation
It is a process by which parties voluntarily discuss their differences and attempt to reach a
common decision in resolving a dispute between them. This is usually the first step in most
ADR mechanisms. Negotiation is one of the oldest forms of ADR. It consists of a “quid pro
quo” of a sort, which is giving up something in order to get something else in return.95 The role
of the Negotiator is basically to assist the parties in reaching a compromise and settlement in
their matter. Decision reached is not legally binding unless they agree to be bound by it.96
Where neither party is willing to make compromise, the negotiation will reach an impasse. It
is quite possible for negotiation to become ineffective if the parties’ positions are far apart and
there are no common interests to bridge the gap.97

5.5.4. Mediation
This is another ADR process and the most common form of it. Mediation is defined as a flexible
process conducted confidentially, in which a neutral person known as the mediator actively
assists parties in working towards a negotiated agreement of a dispute or difference, with the
parties in ultimate control of the decision to settle and the terms of resolution.98A mediator is a
person who is trusted and accepted by both parties to a dispute.99 The role of the mediator is to
assist the parties to reach an agreed settlement. He is not a decision maker. The procedure he
adopts to achieve this is to meet each party privately, so as to understand that party's own side
of the story. Thereafter he tries to bring both parties together so that they may themselves work
out a compromise solution to the dispute. He does not himself suggest a solution to the parties
and cannot compel them to reach a settlement.100

94
Oloyede J.D., Chartered Institute of Arbitrators Nigeria Newsletter (June,2014) Vol.1 Issue1 p.1
95
G C Nwakoby & F Anyogu, “Institutionalising Alternative Dispute Resolution Mechanism in Nigeria Legal
System” (2004) 4, No. 1 UNIZIK LJ,149.
96
C E Ibe. 'An Overview of Alternative Dispute Resolution Methods' (2004) 4 No I UNIZIK LJ. 215
97
Ikenga K.E, Tochukwu Nkiruka, ‘‘Arbitration versus other alternative disipute resolution mechanisms in
settlement of maritime conflicts in Nigeria: A comparative analysis’’, PMB. 5025, Akwa, Anambra State,
Nigeria.
98
K Aina, “The Multi-Door Court House Concept: A Silent Revolution in Legal Practice” (2006) 6 (1)
NBLPJ, 3.
99
Ibid.
100
G Ezejiofor, The Law of Arbitration in Nigeria (Lagos; Longman NigPlc, I997) 93.

85
Mediation is a non-binding procedure. Hence, it is not a bar to arbitration or litigation. Over
and above all, mediation processes avoid high cost, uncertainties and undue delays of the
adversarial legal system. The interests and needs of the parties constitute the focal point.
Applying positive and proactive approaches, the mediator assists the parties to reach these
goals. There are no laws or precedents to resort to; each case is unique.

5.5.5 Conciliation
This is another alternative dispute resolution mechanism. It is similar to conciliation. It entails
settlement of dispute in an amiable matter. It is a non-binding procedure where an impartial
third party, known as the Conciliator assists the parties to a dispute in reaching a mutually
agreed settlement of the dispute. The Arbitration and Conciliation Act also provides for the
right to settle dispute by Conciliation. The Act acknowledges that a decision reached is not
binding on the parties. After hearing the parties, the conciliator will submit its terms of
settlement to the parties. If the parties agree to the terms of settlement, the conciliator will draw
up and sign a record of settlement. But if the parties disagree, the conciliation body may refer
the dispute to Arbitration or take action in Court. This is because the conciliation proceeding
is without prejudice to taking further legal action or resorting to arbitration. The terms of
settlement in conciliation can only be binding when the parties accept the terms of settlement.
Conciliation method is regulated by the Conciliation rules set out in Schedule 3 to the Act.

Summary of Study Session 5

In this module, attempts have been made to discuss both criminal and civil procedures. Crime
and civil wrong are distinguished as well as the procedure that follows each. Also, various
mechanisms for alternative dispute resolution are explained. These mechanisms include,
negotiation, conciliation, mediation and arbitration, among others.

Self-Assessment Questions
1. What is Nigeria’s criminal philosophy or theory?
2. Explain nolle prosequi.
3. Enumerate five different law enforcement agencies in Nigeria.
4. Outline the stages of criminal prosecution of a suspect.
5. What is arraignment?
6. Discuss the doctrine of presumption of innocence?

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 7. Discuss crime and civil wrong, highlighting the major differences between them.
8. Analyse different stages of civil proceedings
9. Examine the concept of alternative dispute resolution and give reasons why the concept
should be preferred above litigation.
10. Discuss various alternative dispute resolution mechanisms.

References
1. Akintunde Obilade, The Nigerian Legal System (1979, Spectrum)
2. J.O. Asein, Introduction to Nigerian Legal System (1998, Sam Bookman Publishers)
3. G. Ezejiofor, The Law of Arbitration in Nigeria (1997, Longman Plc)

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 STUDY SESSION 6

COMMERCIAL LAW

Introduction
The sole purpose of this study session is to introduce the students to the basics of commercial
law and to make them understand different types of commercial relationships that affect us as
individuals and that affect the society at large.

Learning Outcomes for Study Session 6

1. At the end of this study session, learners should be able to discuss the basics of
commercial law
2. Students should be able to explain different types of commercial relationships
3. Students should be able to elements of a valid contract

6.1 Law of Contract

It may be difficult to define a contract in one simple sentence because of its numerous
implications. A contract can be simply defined as an agreement between two or more persons
which has a binding effect on them. This simply implies that the agreement becomes the law
in which they operate on and none of the parties involved can decide on his own volition to do
otherwise as that will amount to a breach of contract.

One notable feature of the contract that makes it different from just any form of agreement is
that it must be legally binding. This means it can be enforceable at law. Several legal principles
and statutory provisions are employed to make it legally binding on all parties involved.

6.2.1. Classification of Contract

There are basically three different classifications of contract. They are:
• Simple contract and Contract under Seal.
• Express and Implied Contracts.
• Bilateral and Unilateral Contracts

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Simple Contracts and Contracts under Seal
A simple contract can be simply defined as one made orally or in written form but without any
legal implication on both parties. All that a simple contract needs to be valid is consideration.
And by consideration, we mean a promise for something of importance in exchange for another
promise of something of importance by the other party. The consideration could be service,
goods or money and that becomes the basis for the contract. While a contract under seal also
term as sealed contract and generally referred to as deeds is a formal kind of contract that is
signed, sealed and delivered.

Express and Implied Contracts

An express contract is made when the terms of the agreement between the parties are made
orally, in writing or under seal. On the other hand, the actions or conduct of parties can be
interpreted to mean that a contract exists. This is what is known as an implied contract. In the
case of Deji Oyenuga v International Computers (Nig)101, the appellant (Deji Oyenuga) did
architectural drawings for the respondent (International Computers) but the parties had no
express agreement on the amount to be paid to the appellant. It was held that an agreement
would be implied whereby the appellant was entitled to charge his fees according to the scale
of fees used by Architects in Nigeria.

Bilateral and Unilateral Contracts

A bilateral contract arises when the parties exchange promises. Even though none has
performed as agreed, the parties are bound because the promise of one is consideration for the
promise of the other.

On the other hand, a unilateral contract is one in which one party (the promisor) binds himself
to perform a stated promise upon performance of a stated condition by the promisee. The
promisee is bound to perform once the promisor fulfils the condition.

6.2.2 Essential elements of a valid contract

For any contract to come into existence, such a contract must have all the elements which are
offer, acceptance, consideration and intention to create legal intentions.

101
(1991) 1 N.W.L.R.415

89
Offer
An offer is an expression of willingness to contract made with the intention that it shall become
binding on the offeror as soon as the offeree accepts.102As noted by Sagay,“an offer must be
precise and unequivocal, leaving no room for speculation or conjecture in the mind of the
offeree”. An offer and acceptance can be made expressly(where the terms are expressly stated)
or by conduct(implied),for instance, If I offered my neighbor two thousand naira to wash my
car and he did it without any verbal agreement, his action suggests he accepted my offer and I
would have to pay him the two thousand naira as promised.

From the above given definitions of an offer, it is clear that for an offer to become binding on
acceptance, it must be clear and final, if it is merely a preliminary move to negotiate, no offer
has been made but an invitation to treat.

An invitation to treat according to Prof. Andrews Burrowsis merely an expression of

willingness to negotiate, this is expressed in the Latin maxim invitation ad offerendum meaning
“inviting to offer”. A person making an invitation to treat does not intend to be bound as soon
as it accepted by the person to whom the statement is addressed. As noted in Carlill V.
Carbollic Smokeball Co103,“an invitation to treat is an offer to receive offers”. It is important
to note that an invitation to treat, not being an offer is not capable of an acceptance which will
result in a contract.

Acceptance
Acceptance is an absolute and unqualified expression of assent to the terms of an offer.104Niki
Tobi JCA (as he then was) noted that for “an acceptance to be valid, it must be plain,
unequivocal, and unconditional without any variance with the original offer and it must be
communicated without delay.” The offeree must indicate by some positive action, that he
totally agrees to the terms of the offer. His intention to accept will not do; neither would a
statement by which he merely acknowledges receipt of the offer.105It follows from the above
given definitions of acceptance, that for an acceptance to be effective, it must:

102
Wakama v. Kalio (1991)8 N. W.L.R.(pt. 207)p.123.
103
(1893) 1 Q.B. 256
104
(1944) 2 ALL E.R. 497
105
Professor A.A Adeogun, and others, ‘The Law of Contract’ in E.O. Akanki (eds), Commercial Law in
Nigeria(2010), 103.

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 • Be plain
• Be unequivocal
• Be unconditional
• Be without variance of any sort between it and the offer
• Be communicated to the offeror without unreasonable delay
It is this element of acceptance that underscores the bilateral nature of contract. There are
however, situations where there is apparent acceptance but such acceptance is invalid for some
reasons. Invalid types of acceptance include conditional acceptance, counter offers, cross
offers, acceptance in ignorance of offer and cross offers.

Consideration
A widely accepted definition of consideration is found in Currie v. Misa106. In that case, a
valuable consideration was said to “consist in some rights, interest, profit, or benefit accruing
to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or
undertaken by the other”. In a more easily understandable term, consideration may be described
as the basis of bargains. This need not be in money; an act, forbearance or promise is
sufficient.107

Intention to Create Legal Relations

The law demands, in addition, that there must be the intention to contract. This means that it is
necessary to have evidence of an intention to enter into legal relations so that if the agreement
were broken the other party would be able to sue for remedies. If reasonable persons would
assume that from the wordings or the circumstances, a promise gives rise to legal obligations,
the promisor would be bound by it whether or not he anticipated such a result.108

106
(1875). L.R.10 Exch. 153.
107
Professor A.A Adeogun, and others, ‘The Law of Contract’ in E.O. Akanki (eds), Commercial Law in
Nigeria(2010), 145
108
Professor A.A Adeogun, and others, ‘The Law of Contract’ in E.O. Akanki (eds), Commercial Law in
Nigeria(2010), 154.

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 1. …………….is an agreement between two or more persons which has binding effect on
them. (a)offer (b)acceptance (c)contract (d)consideration
2. Which of the following is not a classification of contract? (a) simple contract (b)express
contract (c)bilateral contract (d) multilateral contract
3. …………………is a promise for something in exchange for another promise (a)offer
(b)acceptance (c)contract (d)consideration
4. Invitation to treat is related to ………… (a)offer (b)acceptance (c)contract
(d)consideration

1. (c) contract
2. (d) multilateral contract
3. (d) consideration
4. (a) offer

6.3. Law of Agency

There is no universal definition for agency. According to Friedman, he defines agency to be
the “relationship that exists between two persons when one, called the agent, is considered in
law to represent the other called the principal, in such a way as to be able to affect the
principal’s legal position in respect of strangers to the relationship by the making of contracts
or the disposition of property. Thomas J, in the same connection, is of the view that “agency is
a word used to connote the relationship which exists where one person has the authority or
capacity to create legal relations between another person and a third party109. These two
definitions appear to define agency only in terms of its legal consequences. It will appear that
according to the eminent writer and eminent justice, it is impracticable to try and define this
term in any other way aside in terms of its consequences. To them, a person is an agent only
so far as his acts can result in some alteration of the legal situation of the one for whom he acts
or purports to act.

109
LC Fowler & Sons Ltd v St Stephens College Board of Governors {1991} 3 NZLR 304

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An agent can simply be defined as a person who has undertaken to act for and on behalf of a
principal with authority to create legal relations between the principal and a third party.

6.3.1. Agency and Other Legal Relationships

There are other relationships that share historical and conceptual affinity with the law of
agency. These other relationships share cognate ties with the law of agency that if one is not
careful, one would assume erroneously that no useful distinctions, no matter how subtle they
are, can be borne out of agency and these other similar relationships.

Trust
Agency is similar to trust in that the trustee acts on behalf of the beneficiary of the trust. The
position of the Agent is more akin to that of a trustee where, because of the confidential
relationship between them, the principal entrusts the agent with property or business to
manage.110 The major difference between them is that the trustee has title to the property as the
legal owner while the agent has no such title to his principal’s property. Another difference is
that only the court has the power to remove a trustee but an agent can be removed by his
principal.

Servants
There is also a close similarity between a servant and an agent111. In its modern context, master
and servant relationship exists between employer and employee and an employee may like an
agent have authority to create a contractual bond between his master and a third party. The
difference between them lies primarily in the fact that a servant is solely committed and loyal
to a master but an agent can work for several principals at once. Also a servant performs his
duties under the strict supervision and total control of his master but an agent carries out his
duties with his discretion and expertise, and as long as the job is done, the principal has no
issue with how it’s been carried out.

6.3.2 Types of Agent

It is important to discuss briefly some professional agents and not just classify them loosely
as special, general and universal agents.

110
A.A Adeogun, and others, ‘The Law of Contract’ in E.O. Akanki (eds), Commercial Law in Nigeria(2010),
222.
111
ibid

93
 Attorney
It simply means agent or representative. When an attorney is appointed in writing, he is said
to have ‘power of attorney’.

Auctioneer
An agent appointed by a principal or authorized by law to sell goods or property at public
auction. He is primarily the agent of the seller.

Broker
An agent employed to make bargains and contracts between persons in matters of trade,
commerce and navigation. A broker is a mere negotiator between other parties.” This is further
confirmed by the court in the case of Barring v Corrie112where the court held that he is not
entrusted with the possession of goods he sells. One other point of distinction is that a broker
does not usually sell in his own name. In the above mentioned case, the court explained that
the principal to a broker expects the broker to not sell in his (broker’s) name.

Factor
A factor is an agent that is invested with the possession of his principal’s property with the
view to selling, consigning it for sale or pledging it where necessary. This type of agent
normally sells in his own name without disclosing the name of his principal.

Del Credere Agent

A del credere agent is a factor who in return for a higher rate of commission, promises that
persons with whom he enters into contracts on behalf of the principal shall duly pay any sum
becoming due under the contracts.113 He is a surety for the third party and the element of
remuneration by way of del credere commission is essential for the establishment of the
agency.

6.4. Sale of Goods Law

The essential nature of sale of goods is that there shall be a transfer of property in the goods
from the seller to the buyer for a price in money. The Sale of Goods Act 1893 defines a contract

112
(1818), 2B & Ald. 137.
113
Omoregie v B.P. Cement Fabrik (1962) All N.L.R.156.

94
of sale of goods as a: “contract whereby the seller transfers or agrees to transfer the property in
goods to the buyer for a money consideration called the price.”114.

The Act demands that the subject matter of the contract must be goods. “Goods” is defined by
sec.62 of the Act to include:
“all chattels personal other than things in action and money….the term
includes emblements, industrial growing crops, and things attached to
or forming part of the land which are agreed to be severed before sale
or under a contract of sale”

Chattels personal are tangible personal things such as a car, clothes, shoes. The sale of any of
these is the sale of goods for the purpose of the Act.115
Emblements are products of the land which do not grow naturally but are the annual result of
agricultural labour.

Industrial growing crops include things that are grown by the industry of man.
Things attached to and forming part of the land include things that are growing naturally on
the land such as timber or grass. The Act treats a sale of fructus naturalis (natural fruits) as a
sale of goods only if they are to be severed before sale or under a contract of sale.116

6.4.1. Classification of Goods

Goods which form the subject matter of a contract may be classified into one of the following:
Specific Goods: goods identified and agreed upon at the time a contract of sale is made. E.g.
Wale agrees to buy a tuber of yam from Nike and selects the tuber there. They are therefore
specific goods.

Ascertained Goods: It refers to those goods identified in accordance with the agreement after
the contract is made. The only difference between specific goods and ascertained goods is the
time of identification. For specific goods, it’s at the time of making the contract; for ascertained
goods, it takes place after making the contract.

114
Section 1
115
Professor A.A Adeogun, and others, ‘The Law of Contract’ in E.O. Akanki (eds), Commercial Law in
Nigeria(2010), 269
116
ibid

95
Unascertained Goods: These are goods sold by description and which have not be been
specifically identified and agreed upon.
Existing Goods: These are goods owned or possessed by the seller at the time of the contract117.

Future Goods: These are goods to be manufactured or acquired by the seller after the contract
of sale.118

6.5 Hire Purchase Law

A hire-purchase agreement is a contract of hire coupled with an option to purchase. The motive
of this pattern of arrangement is to enable the owner to sell and the hirer to eventually buy. It
is well explained in section 20 of the Hire-Purchase Act 1965.

6.5.1 The Hire Purchase Act, 1965

The Act seeks to absolve the hirer of the liabilities under common law. With a view to strictly
following the rules contained therein. It also appears to remove the harsh conditions of the
common law rule and while providing more friendly ways under the Act along with the
obligations of the owner and that of the Hirer under the Act as against the ones under the
Common law procedure. Under the Act, Hire Purchase means the bailment of goods in
pursuance of an agreement under which the bailee may buy the goods or under which the
property in the goods will or may pass to the bailee Hire-purchase agreement is where, by virtue
of two or more agreements, none of them by itself constitutes a hire-purchase agreement, there
is a bailment of goods and either the bailee may buy the goods, or the property therein will or
may pass to the bailee. The agreements shall be treated for the purposes of this Act as a single
agreement made at the time when the last agreements was made. The hire-purchase agreement,
unlike the position under the common law, all hire purchase agreements which are intended to
operate or fall within the provisions of the Act must comply with certain provisions or
procedural requirements as to form and content stipulated under the Act. They are as follows:
Written Information on Cash Price of Goods Before any hire-purchase agreement is concluded,
the owner shall state in writing to the prospective hirer, otherwise than in the note or
memorandum of the agreement, a price at which the goods may be purchased by him in cash.

117
A.A Adeogun, and others, ‘The Law of Contract’ in E.O. Akanki (eds), Commercial Law in Nigeria(2010),
27
118
ibid

96
The Note or Memorandum Section 2 (2) (a) of the Act states that: “there must be a note or
memorandum of the agreement made and signed by the hirer and by or on behalf of all other
parties to the agreement.”In this instance, what is required is that a note or memorandum must
be in writing evidencing the agreement, and that it is not necessary for the hire-purchase
agreement to be in writing. In commercial practice, hire-purchase is usually evidenced by a
standard form agreement which is required to be signed by the hirer, and any other party.
Initially, the agreement may be made orally, but within 14days it must be followed by a signed
memorandum.

Signature: The hirer must sign personally, The memorandum or note must be signed not only
by the hirer but also by the other parties to the agreement while the other party may sign through
their agents.119

6.5.2 Obligations of the Owner

The implied terms have been described as warranty and condition. They bear the same meaning
ascribed to them under the Sale of Goods Act. Distinction is however provided in the definition
under Section 20(1) where –warranty is defined as a non-essential term, the breach of which
entitles the hirerto sue for damages only. Condition is not given a statutory definition – but by
implication, the difference lies in the breach – the hirer is entitled to reject the goods and treat
the contract as repudiated.120
Warranties
• Quiet Enjoyment: the act provides that in every hire-purchase agreement there must be: a) An
implied warranty that the hirer shall have and enjoy quiet possession of the goods. The general
rule is that the owner must ensure that he remains in peaceful and undisturbed possession, note
that interference from an interested third party would constitute a disturbance.121
b) An implied warranty that the goods shall be free from any charge or encumbrance in favour
of a third party at the time when the property is to pass. A charge or encumbrance in favour of
a third party on goods which are subject of a hire-purchase agreement would remain perfectly
good at the time of the hire because the ownership only passes when the hirer elects to exercise
the option to purchase.122

119
Law of Commercial Transaction (NOUN), last accessed 18th July, 2020
120
ibid
121
ibid
122
ibid

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2. Conditions
There are three implied conditions under the Act.
Title: An implied condition on the part of the owner that he shall have a right to sell the goods
at the time when the property is to pass. This provision is aimed at assuring the buyer that the
seller is an absolute owner of the goods. In addition, the right to sell arises at the time of the
delivery of the hired goods and not when the agreement was signed.123

Merchantable Quality: In hire-purchase agreement there is an implied condition that the goods
are of merchantable quality. However, no such condition will be implied where the hirer has
examined the goods or a sample of them and the examination ought to have revealed the defects
of which the owner could not reasonably have been aware at the time when the agreement was
made.

Fitness for Purpose: Where the hirer expressly or by implication makes known the particular
purpose for which the goods are required, an implied condition that the goods shall be
reasonably fit for that purpose.124

6.5.3 Exemption Clauses

The implied conditions and warranties set out under the Act, all set out above shall be implied
notwithstanding any agreement to the contrary. The Act also provides that the owner may rely
on any provision in the hire-purchase agreement to modify or exclude any condition implied
expressly under the Act.

6.5.4 The Hirer’s Obligation

This has been discussed extensively in previous units of the synopsis and so there is really no
need to belabor ourselves with it. The hirer’s right of termination is set out in section 8 of the
Act. it provides that a hirer shall, at any time, before the final payment under a hire-purchase
agreement, be entitled to determine the agreement by giving notice of termination in writing to
any person entitled or authorized to recover any sum payable under the agreement.

123
See Akoshile v. Ogidan (1950) 19 N.L.R.87
124
ibid

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 1. ………………..is a relationship where one person represents the other called the
principal (a)agency (b) agent (c)contract (d) third party
2. Which of the following is not a type of agent? (a)attorney (b)auctioneer (c)broker
(d)faction
3. …………………is an agent that stands as surety for the third party. (a)auctioneer
(b)broker (c)attorney (d) del credere agent
4. ……………….goods are goods owned and possessed by the seller at the time of the
contract. (a)future (b) ascertained (c) existing (d)unascertained

1. (a) agency
2. (d) faction
3. (d) del credere agent
4. (c) existing

6.6. Industrial Law

6.6.1 History of Labour Law in Nigeria
Labour law is generally defined as that branch of the country’s law which regulates industrial
relations.125 In essence, labour laws are meant to guarantee peace and harmony in the industry
so as to increase productivity and profits. Our labour laws are largely a reflection of our colonial
heritage. By virtue of this, many principles of British labour law featured prominently in our
labour statutes. The main characteristics of the incursion of the colonial masters were the
introduction of labour laws and policies which seemed largely designed to facilitate the
commercial and economic objectives and interests of the colonial masters. Thus, in spite of the
fact that Britain proudly claimed to observe the Bill of Rights and the rule of law, labour leaders
were targets of repression and oppression for no other justifiable reason than that they had the
effrontery to demand for their rights. In 1861, Lagos was ceded to the British Crown and in
1862 it was made a colony or settlement as it was sometimes called. By virtue of the Supreme

125
Labour Law (NOUN), last accessed 18th July, 2020

99
Court Ordinance 1876, English common law, doctrines of equity and statutes of general
application were received into Nigerian legal system and by extension, Nigerian law.
Notwithstanding that the offence of criminal conspiracy as it affected trade unions had been
abolished in England by the Conspiracy and Protection of Property Act as far back as 1875,
Nigerian workers did not enjoy such protection until 1939 when the Trade Union Ordinance
was enacted. Apart from statutes and laws regulating employment, common law has played
and continues to play an important if not dominant role in regulating the relationship of master
and servant or, as it is known in modern times, employer and employee. The courts have by
themselves also developed rules which have become permanent features of the contract of
employment. By these rules, certain obligations and rights are implied into contracts of
employment in order to give such contract the required and necessary business efficacy.
According to the eminent Professor of Law, Professor Uvieghara, Nigeria judges provide the
vehicle by which the received English common law is brought into Nigerian law with binding
effects. The learned author cited the Supreme Court judgement in Ezeani V Njidike126 as an
example of the distinctive character which the Nigeria judicial decisions are taken on in the
light of the prevailing unfavourable local circumstances. Labour law in Nigeria has come to
stay and had grown considerably well after its first introduction following the cession of Lagos
to the British crown in 1861 and has enjoyed a high level of judicial activism up to date. It is
now part and parcel of our laws.

6.6.2 Sources of Labour law in Nigeria

The legal sources of Nigeria labour law are127:
(a) The Nigerian constitution
(b) Nigeria’s statutes
(c) The received English law, comprising:
i. the common law
ii. the doctrines of equity, and
iii. statutes of general applications in force in England on January 1, 1990.
(d) Nigerian case law i.e. decisions of Nigerian courts relevant to labour law

126
(1965) N.M.L.R.95
127
Labour Law (NOUN), last accessed 18th July, 2020

100
6.6.3 Nature and content of the contract of employment
The relationship between the employer and employee or what is traditionally referred to as the
master and servant relationship constitutes the very foundation of industrial or labour law; and
the relationship has its basis in the contract of service or contract of employment. Therefore
the distinction between a contract of service/employment and self-employment is of
fundamental importance. Fundamental though this distinction is, the courts have not been able
to lay down any immutable test to determine when a person can be said to be an employee and
so works under a contract of service/employment or when he is an independent contractor or
self-employed and there has been no general guidance coming from the legislature: labour
statues have only provided adhoc definitions primarily aimed at delimiting their scope of
coverage.

The traditional test for determining who an employee is, has been that of control: an employee
is a person employed by another to do work for him on the terms that, the employee, is to be
subject to the control and directions of his employer in respect of the manner in which his work
is to be done. The question to ask therefore is: could the employer control how, when and where
the worker is to work? If he could, then that worker is his employee.

6.6.4 Termination of Employment

We have earlier seen the section 9(7) of the Labour Act provides for ways by which a contract
of employment governed by the act may be terminated; and that section 11 lays down the length
of notice required to terminate such contracts. All other employees are governed by the rules
fashioned out by the Common Law which we now consider.

A contract of employment for a fixed period cannot lawfully be terminated before the end of
that period unless of course the employee is in breach or the contract provides for prior
termination by notice. A contract of employment for an indefinite duration is not to be
construed as a contract of yearly hiring which could be terminated only at the end of the year.

An employer is entitled to give notice to terminate the employment and the length of notice to
be given would depend upon the express or implied terms of the contract. A term that
reasonable notice will be given will be implied and its length will depend upon all the
surrounding circumstances.

101
Where the parties have not expressly provided for the length of notice required for termination,
it then becomes a question of fact for the court to determine what length of notice the parties
contemplated at the time of the creation of the engagement in order to terminate it. Where there
is no evidence of usage or custom as to the period of notice in the industry or trade, the factors
are used to determine what is reasonable notice: (i) nature of the employment, (ii) length of
service of the employee (iii) periodicity of payment of service and (iv) normal notice given to
employees of the plaintiff’s seniority. In effect, therefore, the length of reasonable notice
largely depends upon the status of the employee.

A notice to terminate a contract of employment is effective and starts to run once it is given;
and it cannot be unilaterally withdrawn thereafter. It is a unilateral act requiring no acceptance
by the other party; but once given, it cannot be withdrawn save by mutual consent. Therefore
an employee’s notice of resignation does not depend, for its legal effect, on the employer’s
acceptance of it. This is the normal rule which can be ousted by any express provision in the
contract to the contrary.
The Nigerian courts have also followed the Common Law principle laid down by the English
courts that the mere fact that a contract of employment is expressed to be ‘permanent and
pensionable’ or that it fixes the age at which an employee has to retire, does not mean that the
employee has thereby secured an employment for life or that the employment cannot be
terminated by reasonable notice. Lord Keith in Mclelland v. Northern Ireland General Health
Services Board128was clearly of the view that it would need the clearest language to convince
the court that a contract of personal service was intended to be a contract for life, or a contract
to endure till a servant has qualified for a full retirement pension, a position also taken by
Uwaifo JCA in the recent case of UBN Ltd. v. Edet129.

It is now settled that once an employer gives the required notice to terminate, the validity of
the termination of the contract cannot be impugned on the ground that the employer was
actuated by ill-will or malice or any other improper motive. He is not under any obligation to
give any reason for so acting and where reasons are given by him, he will not be put to proof
of the matter. The only obligation upon him is to show that he had a right to terminate the
contract in the way he has done. Karibiwhyte JSC in the recent case of Fakuadev. OAUTH130

128
[1957] 2 All ER 129
129
(1993) 4 NWLR (Pt. 287)
130
(1993) 5 NWLR (Pt.291) 47

102
succinctly put the position across in this way: ‘the motive which led to the exercise of the
undoubted right is clearly irrelevant to the right to exercise the right. The right thus exercised
is valid notwithstanding the motive’. This position, first taken by the supreme court in 1965
has been consistently affirmed by it and the only indulgence the supreme court has been
prepared to grant is in respect of employments with statutory flavor where misconduct is
alleged. Here, the court insists that an employer must follow due process and that this cannot
be short-circuited by the giving of notice or payment in lieu.

Payment of salary in lieu of notice is permissible, but such payment must be made at the time
of termination of the contract and not afterwards. Similarly, an express provision in the contract
to the effect that either party may give two months’ notice in writing negatives the reading into
the contract term that salary could be paid in lieu of notice

6.6.5 Occupational health and safety

The Factories Act, cap 126 laws of the Federation of Nigeria (LFN) 1990 was primarily
designed to govern order and regulate industrial activities generally. In essence, its main duty
is to prevent occupational accidents and diseases in factories. In Pullen V. Prison
Commissionars131 Lord Goddard, C.J. commenting on the object of the English Factories Act
of 1937 said: The Factories Act, 1937, is an Act which is designed for the protection of persons
working in factories, that is to say, it is an act which is intended to and does put obligations on
employers of labour in factories, to take various precautions for the protection of their work-
people…. Section 89(1) of the Factories Act, 1990 which is in pari material with section 175
of the English Factories Act, 1961, which replaced section 151 of the 1937 Act defines what a
factory is.

It is also important to state at this point that it has earlier being said that Nigeria labour law
principally is derived from English labour law and as such the Factories Act, LFN 1990 is the
Nigerian version of the English Factories Act of 1961 albeit with little modification to fit into
our own peculiar local circumstances. Essentially, it is an off-shoot of the English common
law, most of which is now codified. However, a thorough understanding of the provisions of
section 37(1) of the Act will reveal the following points:

131
[1957] 3 ALL E.R.470,

103
1) A factory premises must be used for trade or gain in order to qualify as a factory. The phrase
“trade” or “gain” connotes an intention to make profit. Thus, the kitchen of a manual
hospital had been held not to be a factory because the mincing of meat by electrical means
carried on in it was not carried on by way of trade or gain.
2) The employer must have access to or control over the promises if the place is to be a factory.
3) Generally, the person or persons who work in a factory must be employed.
Part II of the Act, which is on general health provisions, imposes on the occupiers of
factories, duties designed to protect the health of those employed in such places. Sections
7-12 deal with cleanliness, overcrowding, ventilation, lighting, damage of floors and
sanitary conveniences. The principal provisions of part III of the Act are those dealing with
general safety provisions with particular emphasis on the provision for fencing of
machinery. Machinery under the Act is divided into three classes:
a) Prime movers132; these are engines, motors and other enhancements which provide
mechanical energy derived from steam, water, wind, electricity, the combustion of
fuel and other sources.
b) Transmission machinery;133.This consists of every shaft, wheel, drum, pulley, and
system of fast and loose pulleys, coupling, clutch, driving-belt or other devices by
which the motion of a prime mover is transmitted to or received by any machine
or appliances.
c) Other dangerous parts of machinery. The combined effect of the provision of
sections 14(1), 15(1) and 17(1) of the Act is that it is obligatory on the occupier of
a factory to securely fence there parts of a machinery unless they are in such
position or of such construction as to be safe to every person employed or working
on the promises as it would be if securely fenced.
.
Summary of Study Session 6

This module attempts to analyse commercial law. Several topics that are germane to
commercial law were carefully analyzed. The module discussed law of contract with its major
elements (offer, acceptance, consideration and intention to create legal relations. The module
went further to analyze the law of agency and also discussed the various types of agency while
comparing them with similar terms. The module also discussed the sale of goods act and

132
See sec 14
133
Sec sec16

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analyzed the various classifications of goods. The hire purchase act was also carefully
examined and lastly the Industrial or labour law was discussed. The history and sources of
labour law was analyzed. Issues relating to the termination of employment and the occupational
health and safety of employees were also discussed.

Self-Assessment Questions (SAQ)

1. Discuss the basic essential elements of a contract.
2. List and explain two types of agents.
3. Explain two classifications of goods.
4. Give a basic explanation of how employment can be terminated.

References
1. A.O. Akanki ed. (2010), Commercial Law in Nigeria
2. F. Omojola (2004), Omojola’s General Principles of Business & Cooperative Law in
Nigeria

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 STUDY SESSION 7
PUBLIC LAW

Introduction
Public Law is that aspect of law that dictates relationship between the people and the
government. It basically governs relationships that affect the state. Public law comprises
constitutional law, administrative law, law of evidence, tax law and public officer protection
law.

Learning Outcomes for Study Session 7

1. At the end of this study session, learners should be able to explain how law regulates
relationships between the people and the government.
2. Students should be able to discuss various components of Public Law such as
Constitutional Law, Administrative Law, law Of evidence, Tax Law and Public Officer
Protection Law.
3. Students should be able identify the main features of these components or subjects and
understand their basic principles.

7.2. Constitutional Law

As with many law concepts, constitutional law is very difficult to define, it can only be
described. It can be seen as a set of law that clearly states the duties, powers and organs of the
government within a state or nation. It also deals with the three arms of government namely
the executive, judiciary and the legislature. According to Corlin Turpin, constitutional law
can be defined as ‘a body of rules, convention and practices which describe, regulate or qualify
the organization and operations of government. Overall, constitutional law connotes the laws
inherent in the constitution, whether written or unwritten as far as it is the law that flows from
the superior norm amongst several other norms in a legal order.

The constitution is the supreme, organic and fundamental law that gives legal force and validity
to all other laws or legal norms and even actions by the government in a certain legal order.
The constitution can thus be regarded as the grundnorm.

106
If these definitions and views are anything to go by, it goes without saying that all powers,
legislative, executive and judicial must be ultimately traced to the constitution and any power
exercised by any arm of government that is not derived from the constitution or is in anyway
inconsistent with the constitution shall be declared null and void as reinforced by the provisions
of section 1(3) of the 1999 CFRN.

7.2.1. Different types of Constitution

There are basically two major classification of constitution. We have the written and unwritten,
we also have the flexible and rigid constitution.

Unwritten Constitution
What comes to mind here is that of the United Kingdom. It is termed unwritten because it’s
difficult to point to a single document that is labeled as the British Constitution. This simply
means that there is no singular book that contains the law that governs the British.

Written Constitution
This is just the direct opposite of the unwritten constitution. It indicates that there is possibly a
book or books where the laws that govern a territory are clearly written or documented. Almost
every country operate this pattern of constitution with Nigeria not been left out. Such
constitution invariably spells out the three arms of government namely, the Legislature, the
Executive and the Judiciary.134

Flexible and Rigid Constitution

Basically the flexibility and the rigidity of a constitution depends on how easily it can be
amended. It is however a popular saying that the main fundamental attribute of a written
constitution is rigidity.135 Dicey136 has said that that a rigid constitution is one under which
certain laws generally known as constitutional or fundamental laws cannot be changed in the
same manner as ordinary laws. Dicey goes on to define flexible constitution as one under which
every law of every description can legally be changed with the same ease and in the same
manner by one and the same body.

134
P.A.O. Oluyede, ‘Constitutional Law in Nigeria’, (Evan Brothers 2001)
135
ibid
136
Law of the constitution (10th Ed.) pp.147-150.

107
 1. ……………law deals with the three arms of government. (a)Constitutional (b) Contract
(c) Family (d) Government
2. …………….can be regarded as the grundnorm. (a)legislation (b) common law (c)
Constitution (d) customary law
3. Which of the following is not a type of the Constitution? (a)Written (b)Unwritten
(c)Oral (d)Flexible
4. The flexibility or otherwise of a Constitution depends on how easily it can be
………(a)amended (b)made (c)removed (d)passed

1. (a) Constitutional
2. (c) Constitution
3. (c) Oral
4. (a) Amended

7.3. Administrative Law

Administrative law like other law concepts is difficult to define as there is no universally
accepted definition for it. Austin has defined administrative Law as the law which determines
the ends and modes to which the sovereign power shall be exercised. In his view, the sovereign
power shall be exercised either directly by the monarch or directly by the subordinate political
superiors to whom portions of those are delegated or committed in trust. Bernard Schawartz
has defined Administrative Law as “the law applicable to those administrative agencies which
possess of delegated legislation and ad judicatory authority. Jennings has defined
Administrative Law as ―the law relating to the administration. It determines the organization,
powers and duties of administrative authorities.

According to Professor P.A. Oluyede: Administrative law means that branch of our law which
vests powers in administrative agencies, imposes certain requirements on the agencies in the
exercise of the powers and provides remedies against unlawful administrative acts.

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PROF. B.O. Iluyomade and HON. JUSTICE B.U. Eka stated that: Administrative law is that
body of rules which aim at reducing the areas of conflict between the administrative agencies
of the state and the individual.

7.3.1 The scope of administrative Law

The scope of administrative law is basically the difference between Public Law and Private
Law.137The boundaries of administrative law extend only when administrative agencies and
public official exercise statutory or public powers, or when performing public duties138. In both
civil and common law countries, these types of functions are sometimes called public law
function to distinguish them from private law functions.139The former govern the relationship
between the state and the individual, whereas the later governs the relationship between
individual citizens and some forms of relationships with state, like based on government
contract. For example, if a citizen works in a state owned factory and is dismissed, he or she
would sue as a private law function. However, if he is a civil servant, he or she would sue as a
public law function. The point here is that the rules and principles of administrative law are
applicable in a relationship between citizens and the state: they do not extend to cases where
the nature of the relationship is characterized by a private law function.140

7.3.2 Purpose of Administrative Law

Peer Leyland and Tery Woods have identified the following as the underlying purposes of
administrative law:
• It has a control function, acting in a negative sense as a brake or check in respect
of the unlawful exercise or abuse of governmental/administrative power.
• It can have a command function by making public bodies perform their statutory
duties, including the exercise of discretion under a statute.
• It embodies positive principles to facilitate the good administrative practice; for
example, in ensuring that the rules of natural justice or fairness are adhered to.
• It operates to provide accountability and transparency, including participation by
interested individuals and parties in the process of government.
• It may provide a remedy for grievances at the hand of public authorities.

137
Law of Administration (NOUN), last accessed 18th July, 2020
138
ibid
139
ibid
140
ibid

109
7.4. Law of Evidence
It is worthy of note that there is no statutory definition for the word “Evidence”,
notwithstanding this, the definition of the word can be derived from some other ways by which
it is being applied in the day to day’s activities. Evidence as a word can be understood from the
ordinary English usage. On the other hand, according to the Legal writer, G. Eche Ada,
Evidence can further be understood from both literal perspective and technical perspective. In
the Literal sense, evidence is something which substantiates the existence of certain facts while
the technical usage has been ascribed to definition by Blackstone which is “that which
demonstrates, makes clear, or ascertains the truth of the very fact or point in issue”.

Oxford Advanced Learner’s Dictionary defines “Evidence” to mean information that gives a
strong reason for believing something or prove something. Evidence is the basic and
foundational way by which a matter is proved. The word “Evidence” has been subject of
definition and description by several authors and for a proper understanding, some of these are
hereby examined. Cross defines evidence in relation to evidence of fact. He says; “the evidence
of a fact is that which tends to prove it- Something which may satisfy an inquirer of the fact’s
existence”. On his own part, Phipson sees evidence as that which may be placed before the
court in order that it may decide issues of fact. Taylor stipulates that Evidence includes the
following: 1. All the classes of evidence – Such includes oral, documentary or real evidence 2.
Facts proved 3. Facts disproved.

The legal author, Aguda, suggests that Evidence is the means by which facts are proved but
excluding inferences and arguments. Taylor defines evidence as: “All legal means, exclusive
of mere argument, which tend to prove or disprove any matter of fact; the truth of which is
submitted to judicial investigation” In his own definition of evidence, McKelvey States:
“Evidence is any matter of fact from which an inference may be drawn as to another matter of
fact; the former fact is called the evidential fact; the latter, the ultimate, main or principal”.
Best also defines evidence as “any matter of fact, the effect, tendency or design of which is, to
produce in the mind a persuasion, affirmative or dis-affirmative, of the existence, of some other
matter of facts”. Worthy of note on the concept of “Evidence” is what has been expressed by
Best and Nokes who presented the definition from the perspective of the Legal system. Best
distinguished judicial evidence as “Evidence received by courts of justice in proof or disproof
of facts, the existence of which comes in question before them. Nokes defined Evidence as
“Judicial evidence consisting of facts which are legally admissible, and the legal means of
110
attempting to prove such facts. It is also noteworthy that the definition of the concept
“Evidence” has been judicially ascertained by the Supreme Court in the case of Akintola and
Another v. Solano141. In that case, Oputa JSC stated as follows: “If a thing is self-evident, it
does not require evidence. What therefore is evidence? Simply put, it is the means by which
any matter of fact the truth of which is submitted to investigation may be established or
disproved.” Evidence is therefore a tool by which we prove a case. Evidence has been said to
mean the means by which fact in issue which are material evidence such as oral testimony,
documentary evidence or real evidence are established by a judicial tribunal.

Law of Evidence according to Stephen is “that part of the Law of Procedure which, with a view
to ascertain individual rights and liabilities in particular cases, must establish the following: (1)
What facts may, and what may not be proved in such cases? (2) What sort of evidence must be
given of a fact, which may be proved? (3) By whom and in what manner the evidence must be
produced by which any fact is to be proved?

The Evidence Act 2011 invariably allows evidence to be given in any suit or proceeding
whatsoever. Section 1 of the Act provide as follows: “Evidence may be given in any suit and
proceedings of the existence or nonexistence of every fact in issue and of such other facts as
are hereafter declared to be relevant and of no others. The above notwithstanding, Section 256
(1) of the Evidence Act, 2011 excluded some of the Courts or Judicial proceedings in the
Nigeria Legal System from the observation or application of the rule of evidence. Such
excluded proceedings include; proceedings before an arbitrator, proceedings relating to general
court martial, proceedings in civil matters before any Sharia Court of Appeal, Customary Court
of Appeal, Area Court or Customary Court. The Section 256 (1) Evidence Act, 2011 provides
as follows: This Act shall apply to all judicial proceeding in or before any court established in
the Federal Republic of Nigeria but it shall not apply toa) Proceeding before an arbitrator; b)
A field general court martial; or c) Judicial proceeding in any civil cause or matter in or before
any Sharia Court of Appeal, Customary Court of Appeal, Area Court or Customary Court,
unless any authority empowered to do so under the constitution, by order published in the
Gazette, confers upon any or all Sharia Courts of Appeal, Customary Courts of Appeal, Area
Courts or Customary Courts in the Federal Capital Territory Abuja or a State, as the case may
be, power to enforce any or all the provisions of this Act. But by virtue of Section 256 (2) and

141
[1986] 4 S.C. 141 at 184

111
(3) of the Evidence Act 2011 such courts or proceedings excluded from the application of the
law of evidence as above mentioned are mandated to apply the rule of the law of evidence
while sitting over criminal cases.142

Section 256 (2) and 11 (3) of the Evidence Act 2011 provides as follows: (2) In judicial
proceeding in any criminal cause or matter, in or before an Area Court. the court shall be guided
by the provisions of this Act and in accordance with the provisions of the Criminal Procedure
Code Law. (3) Notwithstanding anything in this section, an Area Court shall, in judicial
proceeding in any criminal cause or matter be bound by the provisions or sections 134 to 140.

7.4.1. Procedures for conducting trial in the Nigerian courts

The Evidence Act of Nigeria provides for the procedures in conducting trials in the Nigerian
courts, such items of the procedures include the following:
i. Manners of Calling witnesses
ii. Identifying which witness or witnesses to call
iii. Description of which questions may be asked
iv. Description of questions which may not be asked and if asked may not be answered
v. Statements of person who are not called, which may or may not be excluded vi. Exhibits:
documents or other tangible things, which may or may not be tendered
vii. Which fact or facts require proof by proving some other facts and how to prove it.
viii. Inference that may be legitimate from given fact(s) and situation(s).
ix. What facts may not be proved e.g State secrets, accused bad character, facts forbidden
by exclusionary rules of evidence.
x. Description of relevant Evidence.
All the above listed and many more not mentioned are provided for under the Evidence Act of
2011.

7.5. Law of Taxation

The Oxford English Dictionary (1973) has defined tax as ‘a compulsory contribution to the
support of government levied on persons property, income, commodities, transactions, etc, now
at a fixed rate proportionate to the amount on which the contributions is levied’. The Oxford
Advanced Learner’s Dictionary (2006) defined tax as ‘money that you have to pay to the

142
Law of Evidence (NOUN), last accessed 18th July, 2020

112
government so that it can pay for public services.’ It went on to say that ‘people pay tax
according to their income and businesses pay tax according to their profits. Tax is also often
paid on goods and services.’ The word tax was also defined in the case of Matthews v Chicory
Marketing Board143 as ‘a compulsory exaction of money by a public authority for public
purpose or raising money for the purpose of government by means of contributions from
individual persons”. It should be noted that there is no definition there is no legislative
definition for tax and also in all our law.

7.5.1. Features of a good tax system

Kath Nightingale (2001) in Theory and Practice of Taxation stated that a good tax must possess
the following:
1. Simplicity: A good tax system must be straightforward, simple and coherent. The
concept and principles of the tax must be understood by majority of the citizens and
also must be simple to operate. There must also be consistency in administration of the
tax among the different strata of government.144
2. Equity: An ideal tax must be administered on the principles of equity. There are two
types of equitable principles in the taxing system – horizontal equity and vertical equity.
What we mean by horizontal equity is that those in equal circumstances should pay an
equal amount of tax. And when we say vertical equity, it means that those in unequal
circumstances should pay different amount of tax. The importance of this criterion is to
install confidence in the tax payer who will be more willing to pay their taxes if they
believe that the system is fair and equal. 145
3. Ability to pay: By this, we mean that the tax must not be unbearable for the tax payers.
It must be within their financial capability.
4. Administrative Efficiency: The administrative costs should not be higher than the
revenue yielded. Also the tax must take into account certain factors such as, the effects
on economic incentives, and whether it is compatible with desirable international
economic relations.
5. Certainty: The scope of the tax should be clear. This criteria also means the certainty
that the tax can and will be enforced, because a tax that is easily evaded usually causes

143
(1938) 60 CLR 263
144
Law of Taxation (NOUN), last accessed 18th July, 2020
145
ibid

113
 resentment and often a decline in tax payer morality. Also the tax which every person
is bound to pay ought to be certain and not arbitrary.
6. Flexibility and Stability: The tax system should be flexible especially in a federal and
democratic country such as Nigeria where there are always changes in government.
7. Neutrality: A tax must be neutral thus it must avoid distortions of the market. For
instance, a selective tax, such as the sales tax, is not neutral, because it encourages the
consumer to spend his money on another item rather than a taxable one.146

7.5.2 Classification of Taxes

There are two major classification of taxation depending on the object of the taxation. The
different categories of taxes include the following:
1. Direct/Indirect Taxation Taxes can be classified into either direct or indirect. The
distinguishing factor between these two is that whether the taxpayer is aware of
the incidence of the particular tax paid.147
A. Direct Tax: This is the tax levied directly on the person who is expected to pay
the tax. With this type of taxation, the taxpayer will be duly advised through a
notification known as ‘assessment notice’ and he will also be given receipt for
he tax paid. Examples of direct taxation include personal income tax, Pay As
You Earn (PAYE), capital gain tax, capital transfer tax, company’s income tax,
etc.
b. Indirect Tax: This is a tax demanded from one person in the expectation and
intention that he shall indemnify himself at the expense of another. Indirect tax
is borne by a person other than the one from whom the tax is collected. Such
tax is usually levied on the manufacturer but paid by consumer. The taxpayer
of indirect tax s never notified nor have actual knowledge of such levy.
Examples of indirect tax include value added tax (VAT), stamp duty, customs
duty, excise tax, etc.148

2. Proportional, Progressive and Regressive Taxation This classification is based on the

way in which the burden of the tax is distributed among the tax payers.

146
ibid
147
ibid
148
ibid

114
 a. Proportional Tax: This is the kind of tax in which the amount paid as tax is directly
proportionate (equal) to the amount raised (calculated) as the value of the property
taxed (also known as tax base). For this, the percentage of the tax rate remains the
same as the tax base increases. It is also referred to as neutral tax.149
b. Progressive Tax: This is the form of tax in which the percentage of the tax rate
increases as the tax base of a person increases. Therefore a person with higher
income would pay a greater percentage of tax than a person who earns a lower
income. The progressive tax system preaches fairness and equity by asking the
richer to pay more tax than the poor.
c. Regressive Tax: This is a tax whose structure is such that the percentage of tax rate
paid becomes smaller as the value of the property taxed (tax base) increases. Thus
a person earning higher income pays lesser tax than a person earning lower
income.150

1. …………………law vests power in government agencies. (a)Constitutional (b)

Administrative (c)Contract (d) Family
2. Which of the following is not a function of Administrative Law? (a)control function
(b)command function (c) remedies (d) performance function
3. …………… is the basic and foundational way by which a matter is proved (a) Evidence
(b) Proof (c) Jurisdiction (d)Law
4. Which of the following is not an element of a good tax system? (a)simplicity (b)equity
(c)certainty (d)inability to pay

1. (b) Administrative
2. (d) performance function
3. (a) Evidence
4. (d) Inability to pay

149
ibid
150
ibid

115
7.6. Public Officers protection law
The Nigerian Public Officers Protection Act, (POPA) is part of statute of general application
and is deeply rooted in the Public Authorities Protection Act of 1893 which has been repealed
in England.151

The Public Officers Protection Act, (POPA) is an Act enacted to provide for the protection
against actions of public officers and institutions acting in the execution of public duties152. It
protects public officers who have acted pursuant to the duties of their offices from being
harassed with litigations. The primary objective of the Act is to protect the acts of public
officials and public institutions, after a very short lapse of time, from challenge in the
courts153. POPA gives considerable measure of protection against liability to public officers
acting within the course of their legitimate duties. It is generally agreed among scholars,
litigants and commentators that the application of POPA in its present form promotes
injustices. Some have called for its repeal while others have argued that it be modified.154

7.6.1 Scope of Public Officers Protection Law

POPA was incorporated into the Nigerian legislative framework as a Statute of General
Application. It was applicable throughout the Federation subject to local re-enactment. This
segment examines the nature and limits of the provisions of POPA.155

Section 2(a) of the Public Officers Protection Act Cap P. 41, Laws of the Federation 2004
provide as follows:
Where any action, prosecution, or other proceeding is commenced against any person for any
act done in pursuance or execution or intended execution of any Act or Law or of any
public duty or authority, or in respect of any alleged neglect or default in the execution of any
such Act, Law, duty or authority, the following provisions shall have effect. The action,
prosecution, or proceeding shall not lie or be instituted unless it is commenced within three

151
Odusote Abiodun, ‘The Nigerian Public Officers Protection Act: An Anachronistic Legislation Yearning
For Reforms’, (2019), 9, Journal of Public Administration and Governance, Available at
https://www.researchgate.net/publication/331958080_The_Nigerian_Public_Officers_Protection_Act_An_
Anachronistic_Legislation_Yearning_for_Reforms/citation/download, last accessed 18 July, 2020
152
ibid
153
ibid
154
ibid
155
ibid

116
months next after the act, neglect or default complained of or in case of a continuance of
damage or injury within three months next after the ceasing thereof.

Any person referred to in section 2(a) of the Public Officers (Protection) Act means both
artificial and natural persons alike. The provisions of the Act do not only apply to public
officers but also public institutions, ministries, departments and agencies. The Public Officers
(Protection) Act protects as distinct entities in certain cases public officers holding public
offices in the public service. This includes corporation sole or public bodies, corporate or
incorporates156

Summary of Study Session 7

This Study Session attempts to introduce and discuss the Public law system and the several
laws that made it up. The module discussed the constitutional law and examined the different
types of it. The module went further to analyse the administrative law as it affect the society.
The lax of taxation was carefully examined and also the law of evidence was discussed with
the public officers protection Law

Self-Assessment Questions (SAQ)

1. What do you understand by Constitutional Law?
2. List and explain three (3) features of a good tax
3. Explain nature and scope of the Law of Evidence

References

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

2. J.O. Asein : Introduction to Nigerian Legal System (1998, Sam Bookman Publishers)
3. A.O. Akanki ed. Commercial Law in Nigeria (2010)
4. T.A. Aguda, Law of Evidence in Nigeria (1974, Sweet an Maxwell)

156
ibid

117
 STUDY SESSION 8
PRIVATE LAW

Introduction

This study session covers those aspects of law classified as private since they concern the rights
and obligations of individuals in a state. At the end of the session the students should be able
to identify those substantive laws that fall under private law; explain what each of them borders
on and apply the principles learnt in the laws to life situations. Subjects covered include law of
torts, family law, land law, equity and trust and Wills and Administration of Estates tagged
probates.

Learning Outcomes for Study Session 8

1. At the end of this study session, learners should be able to discuss how Private Law
affects the rights and obligations of individuals in a state.
2. At the end of the session the students should be able to identify those substantive laws
that fall under private law
3. Students should be able to explain what each of these substantive laws borders on and
apply the principles learnt in the laws to life situations.

8.1 Law of Torts:

It is that aspect of substantive private law that most touches the civil rights and obligations of
citizens. It is founded on the principle of good neighbourliness. It endows the individual rights
to enjoy his space and obliges the other party to respect the space and vice versa. The Court in
M. V. BREUGHEL & ORS v. MONDIVEST LTD (2018) LPELR-44728(CA) defined tort
thus: "A tortuous act is defined as a civic wrong for which the remedy is common law action
for unliquidated damages." Per NIMPAR, J.C.A. (P. 38, Paras. D-E).

Tort as described in the case above is a common law civil wrong which attracts damages or
compensation. Torts have some similarities and contrasts to two very close subjects namely,
law of contract and criminal law. Whereas law of torts and law of contract are both laws of
civil obligations, and both award damages or compensation, the obligations in law of torts are

118
imposed by the state while the obligations in law of contract are voluntarily created by the
parties to the contract. The wrong in law of contract is breach.

Torts and criminal law are similar to a large extent in terms of the names of the wrongs
including assault, battery, trespass, conversion, although assault and battery go together as one
wrong in criminal law. The contrast between the two subjects, however, are the ingredients of
the wrongs; procedural rules and the standard of evidential proof. Finally the ultimate goal of
law of torts is to compensate whereas the ultimate goal of criminal law is to punish. The main
issues under torts for discussion in this study shall be assault, battery, false imprisonment,
malicious prosecution, trespass, conversion and detinue, nuisance, rule in Ryland v Fletcher,
occupier’s liability, liability for animal, employer’s liability, and defamation.

8.1.1 Assault:
Assault in tort occurs where a person by an intentional and negligent act or omission makes
another person apprehend fear of harm. In technical term such act or omission is called inchoate
battery. Further in Ndibe & Ors. v. Ndibe (2008) LPELR-4178(CA) "Assault, which can be a
tort or a criminal act, is "the threat or use of force on another that causes that person to
have a reasonable apprehension of imminent harmful or offensive contact. It may also mean
the act of putting another person in reasonable fear or apprehension of any immediate
battery by means of an act amounting to an attempt or threat to commit battery." See; First
Bank of Nig. Plc. & Anor. v. Ernest G.A. Onukwugha (2005) 16 NWLR (pt 950) 120 at 152.
On the other hand, battery, which is of criminal law, is the use of force against another, resulting
in harmful or offensive contact. SeeBlack's Law Dictionary, 8th Edition, pages 122 and 162."
Per ARIWOOLA, JCA(Pp. 40-41, Paras. E-A).
In Ebulue & Ors v. Ezebuo (2018) LPELR-44685(CA) the court defined assault as "Any
unlawful attack or application of force or violence to the person of a claimant with or without
actual injury constitutes assault for which the claimant is entitled to damages in a civil action.
See F. B. N. PLC & ANOR. V. ONUKWUGHA (2005) 16 NWLR (PT. 950) 120 AT 152( F-
G). NDIBE & ORS. V. NDIBE (2008) LPELR - 4178 CA) AQUA V. ARCHIBONG & ORS.
(2012) LPELR - 9293 (CA). ESI V. CNPC/BGP INT. & ANOR. (2014) LPELR - 22807(CA)."
Per BOLAJI-YUSUFF, JCA (P. 26, Paras. A-B).

Also, the Court in Esi v. CNPC/BGP International & Anor(2014) LPELR-22807(CA) in

explaining assault in tort as distinguished from assault in criminal law held that "I am amazed
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that the learned trial judge has allowed the argument of learned Respondent's counsel to
becloud him to forget that assault can be both a civil and criminal wrong. Assault is a civil
tort for which the aggrieved person is entitled to damages. Proof in civil matters is on a
balance of probabilities. Assault or battery in civil matters involves inflicting some degree of
force on a person negligently or intentionally. In this case, the Appellants claim that the 2nd
Respondent pushed him out of his office and ordered mobile policemen to push him out of the
camp. There is no evidence on record to contradict that statement of the Appellant. He claimed
that by the act of the Respondents, he felt degraded, dehumanized and insulted in the presence
of the other contractors. In this case, since none of the Respondents' witnesses denied what
occurred, the Appellant need only adduce minimal evidence which must be accepted by this
court. See Egbenike & Anor. v. African Continental Bank Ltd. (1993) 2 NWLR Pt. 375 Pg. 34;
Buraimoh v. Bamgbose (1989) 3 NWLR Pt. 109 Pg. 352." Per OGUNWUMIJU, JCA (P. 19,
paras. A-F).

8.1.2 Battery:
The tort of battery involves an application of force to another person, without consent. It may
be described as consummate assault. The tort of battery may be an act done negligently. The
slightest touch of unreasonable and irritable contact would constitute battery. The Supreme
Court in Okekearu v. Tanko (2002) LPELR-2437(SC) "An act does not amount to a battery,
unless it is done either intentionally or negligently". Per KATSINA-ALU, J.S.C. (P.5, para.
F).According to Fleming, Law of Torts, 5th ed. the tort known as battery is committed by
intentionally bringing about a harmful or offensive contact with the person of another. To
succeed in his action for battery, the claimanthas to prove that he suffered an intentional
infliction of harmful or offensive contact.
8.1.3 False Imprisonment: The tort of false imprisonment per Augie, JCA in Okeke v. Igboeri
(2010) LPELR-4712(CA) occurs where there "…is the restraining or detaining of a person,
if the person doing or causing the imprisonment has no right in law to imprison that other -
see FBN Plc v. Onukwugha (2005) 16 NWLR (Pt. 950) 120, wherein it was held as follows- 'If
there is evidence, which shows that the reporting party, upon suspicions of a felony made a
complaint to the Police, upon which the Police themselves acted, an action in false
imprisonment cannot be upheld. Thus, to succeed in an action for false imprisonment, the
Plaintiff must establish that the Defendant was instrumental in setting the law in motion;
passing information to the Police is not enough'. In other words, a mere complaint to the Police
will not make a citizen liable of false imprisonment - see Nwangwu & Anor v. Duru & Anor
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(2002) 2 NWLR (Pt. 751) 265, where this Court held: 'Where an individual has lodged the facts
of his complaints to the Police and the Police thereupon on their own proceeded to carry out
arrest and detention, then the act of imprisonment is that of the Police." (P.15 Paras B-G).

“False imprisonment differs from most other tort claims in its nature and in how it is to be
proven. The reason for this unique treatment is its serious nature and impact on the individual:
as Fleming has stated, at p. 30, “[It] trenches not only on a man’s liberty, but also on his dignity
and reputation”. The plaintiff must prove three elements to establish the tort of false
imprisonment. He or she must have been totally deprived of liberty; this deprivation must have
been against his or her will; and it must be caused by the defendant. The onus then shifts to the
defendant to justify the detention, based on legal authority under common law or statute... It is
unnecessary that there be actual physical force in making the arrest or in obliging the detained
person to remain in one place. All that is required is that there be a reasonable belief that an
attempt to leave could result in force being used against the detainee... It is clear that “moral
pressure” may suffice to constitute imprisonment, such as a situation where a plaintiff submits
to the defendant’s acts for fear of public embarrassment.”157

8.1.4 Malicious Prosecution:

The court in M.I. NIGERIA LTD. v. HARRY (2009) LPELR-4445(CA) pronounced that "…
malicious prosecution simply means prosecution that is actuated by malice and entirely
undertaken against a person without any reasonable or probable cause. Malice will arise for
instance where at the end of investigations of a complaint by the police no case was revealed
but the complainant insist that the police must charge the plaintiff to court; Or if the facts of a
complaint are to the knowledge of a complainant, false. Malice will also arise where a
complainant misled the police by presenting suborned, paid or arranged witnesses to support a
false complaint pr where the complaint in any other unlawful way influences the police in
prosecuting a plaintiff over tramped up allegations. Reasonable or probable cause on its part
entails being in possession a set of facts which to an ordinary and reasonable person would lead
to the inference that the person against whom a complaint has been made to the police, was
guilty of the alleged offence. The belief and inference of the commission of the offence must
be honest and based on reasonable grounds of the facts and circumstance presented in each
case. See BALOGUN v and IYALEKUE v. OMOREGBE [91] 3 NWLR [177] 94 @ 106." Per

157
Kovacs v. Ontario Jockey Club, 1995 CanLII 7397 (ON SC)

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GARBA, J.C.A (P. 15, paras. A-F). The Supreme Court in BALOGUN V. AMUBIKAHUN
(1989) LPELR-725(SC) held that "In an action for malicious prosecution, the plaintiff must
plead and show by evidence that he was prosecuted by the defendant. In this regard, it must be
shown clearly that the defendant set in motion against the plaintiff, the law leading to a criminal
charge. Secondly, as a result of the prosecution aforementioned the plaintiff was discharged
and acquitted, in short that the prosecution was determined in the plaintiffs favour. Thirdly, the
plaintiff must plead and satisfy the court by evidence that the prosecution by the defendant was
completely without reasonable and probable cause. Finally that the prosecution was as a result
of malice by the defendant against the plaintiff. All the four elements above must be present
for successful action for malicious prosecution, and the onus is always on the plaintiff to prove
each and everyone of them." PER BELGORE, J.S.C. (P.9, Paras.C-G). As to whether malicious
prosecution only results from criminal proceedings the Court of Appeal in AGI v. FIRST CITY
MONUMENT BANK PLC (2013) LPELR-20708(CA) stated thus: "Malicious prosecution is
not limited to criminal proceedings. To prosecute within the purview of this tort is, in essence,
to set in motion the law whereby an appeal is made to some person with judicial authority with
regard to the matter in question: and, to be liable for malicious Prosecution, a person must be
actively instrumental in setting the law in motion. See; Usifo 11 v. Uke (supra); Balogun v.
Amubikahun (1989) 3 NWLR (Pt. 107) 18; Bayol v. Ahemba (1999) 10 NWLR (PT 623)
381."Per OTISI, J.C.A.(P. 43, paras. B-D). Therefore where a party set in motion the instrument
of state against another which results in the other person's prosecution without reasonable bases
for which the prosecution failed, the aggrieved party may sue for malicious prosecution for
damages against the person that actuated the groundless prosecution.

8.1.5 Trespass to Land:

Trespass generally is the wrong torts seek to remedy and compensate. Assault, battery, false
imprisonment, trespass to land, conversion and detinue, nuisance, rule in Ryland v Fletcher,
occupier’s liability, liability for animal, employer’s liability, and defamation all constitute
trespass to person or property. Trespass to land is part of trespass to property. In Osuji v lsiocha
(1989) 3NWLR (Pt.111) Pg 623 at 631 Para.F explained that "Trespass to land is unlawful
interference with exclusive possession. "If the defendant placed a part of his foot on the
plaintiff's land unlawfully, it is in law as much a trespass as if he had walked half a mile on it"
- per Coleridge, C.J. in Ellis v. Loftus Iron Co. (1874) L.R. 10 C.P.W at 12." Per Wali JSC.

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The case of ADAMU v. LEEDO PRESIDENTIAL MOTEL LTD & ANOR (2015) LPELR-
25918(CA) itemised the elements of trespass thus "It is trite that the wrong of trespass to land
consists of
(a) entering upon the land in the possession of the claimant, or
(b) remaining upon such land, or
(c) placing or projecting any material object upon it –
in each case without lawful justification - Bamgbade v. Balogun (1994) 1 NWLR (Pt 323) 718."
Per ABIRU, J.C.A. (P. 32, Paras. A-C).

8.1.6 Conversion:
Conversion in tort according to the court in BONIFACE ANYIKA & COMPANY LAGOS
NIGERIA LTD. v. KATSINA U. D. UZOR (2006) LPELR-790(SC) "A cause of action in
conversion is based on an unequivocal act of ownership by a defendant of goods of the plaintiff
without any authority or right in that behalf. See Ojini v. Ogo Oluwa Motors (Nig.) Ltd. (1998)
1 NWLR (Pt.534) 353. In that case, Belgore, JSC, said at page 363: "When a person, by
deliberate act, deals with the chattels of another in a manner inconsistent with that other's right
whereby he is deprived of the use and possession thereof, the tort of conversion is committed.
To be liable for conversion, the defendant need not intend to question or deny the plaintiff's
right but it is enough that his conduct on the chattel is inconsistent with the plaintiff's rights."
See also Owena Bank (Nig.) Ltd. v. Nigerian Sweets and Confectionery Co. Ltd. (1993) 4
NWLR (Pt.290) 698; National Bank of Nigeria Limited v. Mobil Oil Nigeria Limited (1994) 2
NWLR (Pt. 328) 534; Danjuma v. Union Bank (Nig.) Ltd. (1995) 5 NWLR (Pt.395) 318;
Omidara v. Ademiluyi (1997) 6 NWLR (Pt.508) 294; Yusuf v. Mobolaji (1999) 12 NWLR
(Pt.631) 374; Trade Bank Plc. v. Banilux (Nig.) Ltd. (2000) 13 NWLR (Pt.685) 483."

Also in EZEUGO v. AGIM (2015) LPELR-24572(CA) the Court stated the nature of
conversion and the ingredients when it held as follows: "… What is tort of conversion? The
answer to this question has been aptly provided in the case of BONIFACE ANYIKA & CO
LAGSO NIGERIA LTD VS KATSINA U.D. UZOR (2006) 15 NWLR (PART 1003) 560 at
574 H to 576 A-D where NIKI TOBI espoused the law and proof required in a case of tort of
conversion thus: "And that takes me to the tort of conversion. Conversion is an act of willful
interference, without lawful justification, with any chattel in a manner inconsistent with the
right of another, whereby that other is deprived of the use and possession of that chattel. The
tort of conversion is committed where one, without lawful justification, takes a chattel out of
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 the possession of another, with intention of exercising a permanent or temporary dominion
over it, because the owner is entitled to the use of his property at all times. The usual method
of proving that a detention is adverse is to show that the plaintiff demanded the delivery of
the chattel, and that the defendant refused or neglected to comply with the demand. See
Ihenacho v. Uzochukwu cited by learned counsel for the appellant. A cause of action in
conversion is based on an unequivocal act of ownership by a defendant of goods of the
plaintiff without any authority or right in that behalf. See Ojini v. Ogo Oluwa Motors (Nig.)
Ltd. (1998) 1 NWLR (Pt. 534) 353. In that case, Belgore, JSC. said at page 363: "When a
person, by deliberate act, deals with the chattels of another in a manner inconsistent with that
other's right whereby he is deprived of the use and possession thereof, the tort of conversion
is committed. To be liable for conversion, the defendant need not intend to question or deny
the plaintiff's right but it is enough that his conduct on the chattel is inconsistent with the
plaintiff's rights." See also Owena Bank (Nig.) Ltd. v. Nigerian Sweets and Confectionery
Co. Ltd. (1993) 4 NWLR (Pt. 290) 698; National Bank of Nigeria Limited v. Mobil Oil
Nigeria Limited (1994) 2 NWLR (Pt. 328) 534; Danjuma v. Union Bank (Nig.) Ltd. (1995)
5 NWLR (Pt. 395) 318; Omidaru v. Ademiluyi (1997) 6 NWLR (Pt. 508) 294; Yusuf v.
Mobolaji (1999) 12 NWLR (Pt. 631) 374; Trade Bank Plc. V. Barilux (Nig.) Ltd. (2000) 13
NWLR (Pt. 685) 483. For the tort of conversion to be committed, the following ingredients
must be present and proved.

1. The goods belong to the plaintiff.

2. The goods do not belong to the defendant.
3. The goods are taken out of the possession of the owner, the plaintiff, without lawful
justification.
4. The defendant must have the intention of exercising permanent or temporary dominion
over the goods.
5. There must be specific demand for the goods by the plaintiff, the owner.
6. That denial must be followed by an unequivocal act of refusal to surrender the goods
by the defendant to the plaintiff.

The crux of the tort is that the defendant must deal with the goods of the plaintiff in a manner
inconsistent with the plaintiff's right of ownership. In view of the fact that ownership is central
to the tort, a plaintiff who cannot prove ownership cannot succeed in an action on the tort of
conversion. Demand is also a vital ingredient. There cannot be conversion until the plaintiff
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formally makes a demand of the goods, followed by a refusal by the defendant to surrender
them. That is when the intention of the defendant to deny the plaintiff's right to ownership of
the goods comes to the open. Did the appellant prove the tort of conversion? No. The evidence
before the Learned trial Judge was that the goods, being contraband, were seized by the
Department of Customs and Excise and thereafter auctioned. The moment the goods got to the
possession of the Department of Customs and Excise, they were completely out of the
possession of the respondent, who was the Clearing Agent. And so, any demand for the goods
by the appellant was an exercise in futility. A person can surrender possession of what he has
in possession. He cannot surrender possession of what is not in his possession. That is both a
factual and legal impossibility. In this case, the raw hands of the law grabbed the goods and
there was nothing the respondent could do." Per IGE, J.C.A. (Pp. 31-34, paras. F-E).

8.1.7 Detinue:
Detinue is no longer part of the tort in England where Nigeria inherited it. According to the
court in Guinness Nigeria Plc. v. Nwoke (2000) LPELR-6845(CA) "Detinue is only an action
in tort whereby the plaintiff on demand seeks specific restitution of his chattel. It entails claim
for the return of the chattel or its value and damages for its detention." Per IBIYEYE, J.C.A.
(Pp. 16-17, paras. G-A).

As to the ingredients, the Court pronounced as follows in UAC (NIG) Plc v. Akinyele (2012)
LPELR-8015(CA) "The ingredients of the tort of detinue were correctly stated by my learned
brother, GARBA, JCA in LUFTHANSA V. ODIESE (2006) 7 NWLR (pt 978) 34 at 76 as
follows: "For a plaintiff to succeed in detinue he must adduce credible, admissible and
sufficient evidence to establish the following facts:
(a) He is the owner of the chattel or property in question,
(b) He has an immediate right to possession of the property/chattle,
(c) That defendant is in actual possession of the property or chattel,
(d) He has made proper demand on the defendant to deliver up the property/chattel to
him,
(e) The defendant, without lawful excuse, has refused or failed to deliver up the
property/chattle to him. See Owena Bank vs Olatunji (2002) 12 NWLR (Pt. 36)
987, W.A. Oil Fields vs U.A.C. (2000) 13 NWLR (Pt.683), U.B.N vs Osezuah (Pt.
97) (Sic) 2 NWLR (Pt. 485) 28 and Kosile vs Folarin (Supra)"PER ADUMEIN,
J.C.A (Pp.21-22, Paras. C-A). The same position was held in the Supreme Court
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 decision in CHIGBU V. TONIMAS NIGERIA LTD. & ANOR. (2006) LPELR-
846(SC) thus "Before an action on detinue can be filed, two acts must be present;
one from the plaintiff and the other from the defendant. The plaintiff must make a
formal demand for the return of the goods or chattel. The defendant must refuse to
return the goods or chattel. And so an action in detinue cannot be founded only on
the demand by the plaintiff without a corresponding refusal." Per TOBI, J.S.C. (P.
24, Paras. C-E).

8.1.8 Nuisance:
Tort of nuisance is aptly held in the case of E.E.C. LTD v. GUJBA (2017) LPELR-43275(CA)
"The apex Court has instructively given a clear and simple description of the tort of nuisance
and its application thus: "The basic doctrine underlying the law of nuisance is that a person
ought to so use his own property as not to injure his neighbours. This is embodied in the Latin
maxim, "sic utere tuo ut alienum non laedas" translated to mean "So use your own property as
not to injure your neighbours". The lawfulness or legality of the occupation of the property will
neither exonerate nor ameliorate nuisance committed by the use of the property." See the case
of ADEDIRAN V. INTERLAND TRANSPORT LTD. (1991) 9 NWLR (PT. 214) P.162. What
then is nuisance? The apex Court in the case of IPADEOLA V. OSHOWOLE (1937) NWLR
(PT.59) 18 per Eso JSC as he then was, quoted with approval a description of nuisance from
the learned Authors, Clerk and Lindsell in their book on Torts 13th Edn. para. 1391 thus: "An
actionable nuisance is incapable of exact definition and it may lap with some other heading of
liability in tort such as negligence or the rule in RYLANDS V. FLETCHER-- Nuisance is an
act or omission which is an interference with, disturbance of, or any annoyance to a person in
the exercise or enjoyment of; a. a right belonging to him as a member of the public, when it is
public nuisance; or b. his ownership or occupation of land or of some easement, profit or other
right used or enjoyed in connection with land, then it is a private nuisance." This Court in the
case of HELIOS TOWER LTD. V. BELLO 2017 3 NWLR PT. 1551 P.97 per Mshelia JCA
stated the aim of nuisance as follows: "The whole aim of nuisance is to protect one's right to
peaceful enjoyment of property and damages to that right. The law of private nuisance is
designed to protect the individual owner or occupier of land from substantial interference with
his enjoyment thereof." Per WILLIAMS-DAWODU, J.C.A. (Pp. 21-23, Paras. D-B).

Similarly, the court in FAFUNWA V. BELLVIEW TRAVELS LTD (2013) LPELR-

20800(CA) held "... nuisance is that branch of the law of tort most closely concerned with
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"protection of the environment". Invariably nuisance actions have concerned pollution by oil,
or noxious fumes, interference with leisure activities, offensive smells from premises used for
keeping animals; noise from industrial installations. It is quite broad. However there are areas
of nuisance such as obstruction of the highway or of access thereto which have no
environmental flavor. The prevailing stance of nuisance liability is that of protection of private
rights in the enjoyment of land, so that control of injurious activity for the benefit of the whole
community is incidental.

“Nuisances are categorized into "private" and "public" nuisance. The same conduct may
amount to both. Suffice to say that public nuisance is a crime, while a private nuisance is a tort.
The definition of Nuisance is vague and has been rightly said to "cover a multitude of sins,
great and small" SOUTHPORT CORP V. ESSO PETROLEUM CO. LTD. (1954) 2 Q.B. 18
at 196 per Denning L.J. At Common Law, public nuisance includes such diverse activities as
carrying on an offensive trade, selling food unfit for human consumption etc. Perhaps in this
particular matter at hand, "Private Nuisance" is what should be focused oh, that is if it is
applicable. It may be described as unlawful interference with a person's use or enjoyment of
land, or some right over, or in connection with it." PER PEMU J.C.A (Pp. 13-14, Paras. B-A).

Further the court in the same FAFUNWA V. BELLVIEW TRAVELS LTD (supra) instructed
that "Nuisance as any other tort has elements to it. In other words, to established nuisance, you
must prove some essential, elements, in order to succeed. The tort of Nuisance is an interference
with rights over land arising from a non reasonable use of land. HUNTER v. CANARY
WHARF LTD. (1997) A.C. 655-695 A - B. GOLDMAN v. HARGRAVE (1967) 1. A.C. 645
@ 657." PER PEMU J.C.A (Pp. 12-13, Paras. G-B).

8.1.9 Rule in Ryland v Fletcher:

This is very similar to nuisance except for its peculiar features and strict liability status. The
court in SPDC NIGERIA LTD. V. EDAMKUE & ORS. (2009) LPELR-3048(SC) held "…
The House of Lords said in the case of Rylands v Fletcher: "We think that the true rule of law
is, that the person who for his own purposes brings on his lands and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril, and if he does not do
so, is prima facie answerable for all the damage which is the natural consequences of its escape.
He can excuse himself by showing that the escape was owing to the plaintiffs default; or
perhaps that the escape was the consequence of force majeureor the act of God, but as nothing
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of this sort exists here, it is unnecessary to inquire what excuse would be sufficient."The above
is what is now regarded as the Rule in Rylands v Fletchers, a rule that has been applied in our
courts. " Per TOBI, J.S.C (Pp. 47-48, paras. D-F). The rule is a strict liability rule,158 meaning

Expounding on the rule the Supreme Court in HOGAN v. OGUNYEMI (1971) LPELR-
1369(SC)elucidated thus: "The general rule as laid down in Rylands v. Fletcher (1898) L.R. 3
H.L. 330 is that prima facie a person occupying land has an absolute right not to have his
premises invaded by injurious matter, such as large quantities of water which his neighbour
keeps upon his land. That general rule is, however, qualified by some exceptions, one of which
is that, where a person is using his land in the ordinary way and damage happens to the
adjoining property without any default or negligence on his part, no liability attaches to him.
The bringing of water on to such premises as these and the maintaining a cistern in the usual
way seems to me to be an ordinary and reasonable user of such premises as these were; and,
therefore, if the water escape without any negligence or default on the part of the person
bringing the water in and owning the cistern, I do not think that he is liable for any damage that
may ensue. Another qualification of the general rule enunciated in Ryland v. Fletcher (1898)
L.R. 3 H.L.330 is that if the person claiming to be compensated has consented to the dangerous
matter being brought on to the defendant's land he cannot recover. In this case the plaintiff, by
taking these premises with water laid on to them and accepting his supply of water from the
defendant's cistern, must be taken to have assented to water being kept on the premises by the
defendant. Instances of this kind are to be found in Ross v. Fedden (1872) L.R. 7 Q.B. 601,
Anderson v. Oppenheimer (1880) 5 Q.B.D. 602, Carstairs v. Taylor (1871) L.R. 6 Ex. 217 and
Gill v. Edouin (1894) 71 L.T. (N.S.) 762. The defendant therefore is not liable unless the
damage was caused by his willful default or neglect. Now, is there enough here to show such
negligence on the part of the defendant? It is not suggested that he was personally negligent. It
is admitted that personally he did all that he could do. If he had endeavoured to repair the
leakage himself he would, as has been pointed out, has been guilty of the worst kind of
negligence." Per LEWIS, J.S.C (Pp. 12-13, paras. C-E).

8.2.0 Occupier’s liability:

The definition of occupier’s liability was well enunciated in Wheat v Lacon [1966] AC 552
thus: ‘Wherever a person has a sufficient degree of control over premises that he ought to

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MTN NIG. COMMUNICATIONS LTD V. SADIKU (2013) LPELR-21105(CA)

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realise that any failure on his part to take care may result in injury to a person coming lawfully
there, then he is an “occupier” and the person coming lawfully there is his “visitor.”’ Visitors
in the context include the invited, licencees, and implied licencees (children, the blind).

8.2.1 Liability for animal:

The law of torts provides that whoever keeps an animal (keeper) is obliged to ensure it does
not harm others. Where his animal harms another he may be liable for the injury caused and
therefore liable in damages. For this purpose animals are classified into two categories namely
‘wild animal’ (ferae naturae) and ‘tamed animal’ or ‘domestic animal’ (mansueta naturae).The
keeper is strictly liable if the animal falls under ferae naturae. Strict liability means that proof
of fault is not required. A keeper may also be liable for harm caused by mansueta naturae
where though domestic such animal has the tendency to cause harm to others known to the
keeper which knowledge must be proven by the claimant. Generally, mansueta naturae include
dogs, cats, horses, cattle, bees, and camels. Ferae naturae may include but not limited tolions,
tigers, zebras, monkeys, bears, and elephants.

8.2.2 Defamation:
According to Schlumberger (Nig) Ltd v Onah (2007) ALL FWLR,(Pt. 389) 1327 at 1366, paras
D - F (CA) "Defamation has been judicially defined through numerous cases as the making of
a statement which has a tendency to injure the reputation of the person to whom it refers, which
statement also tends to lower him in the estimation of right-thinking members of the society
generally. The said statement must also cause the person to be regarded with feelings of hatred,
contempt, ridicule, fear, disdain or disesteem. Libel is defamation by publication. See Sketch v
Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678; Onu v Agbese (1985) 1 NWLR (Pt. 4) 704;
U.B.N. Ltd v Oredein (1992) 6 NWLR (Pt. 247) 355; Din v African Newspaper (Nig.) Ltd.
(1990) 3 NWLR (Pt. 139) 392; Onyejike v Anyanso (1992) 1 NWLR (Pt. 218) 437; Ishaku v
Aina (2004) 11 NWLR (Pt. 883) 146." Per Dongban-Mensem J.C.A.

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 1. ……………law is founded on the principles of good neighbourliness. (a) Family
(b)Tax (c) Tort (d) Criminal
2. ………………is called inchoate battery. (a)murder (b) assault (c)manslaughter
(d)stealing
3. …………….is the application of force on the person of another. (a)assault (b)battery
(c)murder (d) manslaughter
4. Dealing with a chattel belonging to another in such a way that is inconsistent with the
ownership right of that person is called……………(a)conversion (b)trespass (c)murder
(d)false imprisonment

1. (c)Tort
2. (b) assault
3. (b) battery
4. (a) conversion

8.2 Family Law

As the name suggest, family law is that arm of substantive law which borders mainly on
different other substantive laws all however set within the unique context of family. The Court
of Appeal in Ugwu & Ors v. Ezeanowai & ORS (2017) LPELR-42754(CA) described the
family in Nigeria this way: "In Oloba vs. Akereja (1988) 3 NWLR (Pt.84) 508 at 524, Obaseki,
JSC defined a "family" within the African context to include "...blood relations in its widest
connotation even to the 100th degree or relationship by marriage." In Sogbesan vs. Adebiyi
(1941) 16 NLR 26 Butler Lloyd, J., held at page 27 as follows: "The summons provides an
instance of the difficulties which are only too likely to arise where a legal document in English
form is used to create an interest unknown to English Law. It is obvious that no assistance is to
be derived from any English decision and although the term family-house or family property
has a well understood meaning in Native Law and Custom I can find no local decision which
is of any assistance in answering the present question and I can only fall back on the general
principle stated in Jarman's seventh rule of construction that all parts of a will are to be
construed in relation to each other and so as, if possible, to form one consistent whole. Looked

130
at from this point of view, it seems to me clear that the testator regarded himself as the head
and benefactor of the whole family in the sense of including his brothers and sisters: for
instance by clause 11 certain funds are to be accumulated for the purpose of providing testator's
children, brothers and sisters with a house each and by clause 12 the residue is divided into
twenty-eight parts distributable among both children and collateral. Taken in connection with
these indications the appointment in the clause itself of a brother as head of the family seems
to me to be decisive. It would to my mind be altogether contrary to the conceptions of Native
Law and custom as well as to good sense to appoint a person who himself is given no interest
in the family property to act as head of the family, a position which involves the management
of that property. For these reasons, I hold that the answer to the first question must he that the
word family was intended by the testator to include his brothers and sisters and their
descendants as well as his own children." In Nigeria Land Law by B. O. Nwabueze, 1982
Reprint, page 35 the learned author wrote as follows: "The normal unit of land-ownership is
not, however, the community or village but the extended family of a man and his children, his
brothers (sometimes sisters as well) and their children and other remoter relatives. The family
may be more or less extended than this. Nowadays the more restricted family comprising the
children and grandchildren of a single individual is fast emerging as an effective unit of
land ownership. This is the result of the rule that when a Nigerian, who is subject to
customary law, dies intestate his individually-owned landed property devolves upon all his
children and their issue as family property..." In Nelson vs. Nelson (1951) 13 WACA 249,
Verity, Ag. P. said at page 251 as follows: "A great deal of argument was addressed to us on
the question of family property and the descent of self-acquired land on intestacy, but much of
this was beside the point, because in the present case there was no intestacy. The property
descended, not upon an intestacy but by virtue of a disposition having effect in customary law
to confer upon the deceased's children an interest in the land which those who would have
inherited upon intestacy are bound by Native law to recognize. (Sarbah, Fanti, Customary.
Law, page 98). No other authority was cited to us directly in point, nor have I been able to refer
to any, but it appears to follow that by confining the interest in the property upon his death to
the children of his wives the deceased effectively disposed of any claims which the wider
family might have had upon an intestacy and conferred upon those children a joint but exclusive
interest in the land, an interest moreover, which as the form of disposition is recognized by
customary law, must be an interest recognized by such law. The assessor in the Court below
had no doubt what such an interest is: an interest as members of the family in family land. The
learned Judge had no doubt that the assessor was right, and I have none. It is true that the word
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"family" has a restricted meaning, but it is clear that the assessor was of the opinion that
while family land in this sense may differ in its inception and in its extent it differs in no way
in its incidence from that held by the family in its wider sense.The rights of members of the
family therein are extensive and they certainly include two things: a right of user and
occupation and a right to decide whether or not the land or any of it shall be alienated. By the
application of English law, the judgment of the Court below appears to me to have deprived
them at least of these two rights and to have conferred upon them in exchange a right to
possession with the second and third respondents of one undivided third interest in the property,
whether jointly or in common, I do not propose to discuss, for in either event the rights of the
appellants to enjoy an undivided third interest with respondent corporations are so far divorced
from those which they were entitled to enjoy in property held by the family as family land as
to be irreconcilable. It appears to me that to place the appellants in that position on the ground
that the suit, brought about by the wrongful attempt of one member of the family to alienate
the property without their consent, is a suit in which all the parties are not natives would be to
do substantial injustice to the appellants. The real issue as to the appellants' right is between
the appellants and the first respondent, both natives and the second and third respondents have
only been brought into it because in spite of notice of the interest involved, they nevertheless
chose to enter into engagements which to their knowledge would raise these questions of native
customary law. In my opinion, therefore, the law which should be applied in determining the
major issue is native customary law, and I am in no doubt that in accordance therewith the
purported sale by the first respondent without the consent of the appellants who are admittedly
principal members of the family in which the land is vested or on behalf of whom it is held,
was contrary to native customary law, is therefore invalid and must therefore be set aside." In
Nigerian Land Law, 4th Edition by T. O. Elias appears the following passage at page 186: "So
inexorable in their operation are the rules of customary inheritance that land acquired by an
individual as absolute private property, whether purchased with his own money or obtained as
such in consequence of partition of family land, devolves upon his children as family property
under the customary law of succession. Thus, in Ogunmefun vs. Ogunmefun (1931) 10 NLR
82, the plaintiff's grandfather died intestate, leaving a fee simple estate to his children only two
of whom, however, survived him with issue. The plaintiff's mother was the sole surviving child
of her father when she purported to devise by will her share of the estate. It was held that the
purported devise was invalid, as until partition plaintiff's mother's succession rights were
inalienable by her under the customary rules of inheritance which must be taken as governing
the form of land tenure left by the intestate grandfather. The plaintiff therefore succeeded to
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his mother's share to the exclusion of the intended devisees." Per TUR, J.C.A. (Pp. 28-34,
Paras. A-C).

In Nigeria family law reflects more the plural legal system operating in Nigeria. It covers both
customary law guiding families that elect the customary law system. It also covers the family
law inherited from the English legal system. Two major strands of marriages exist; customary
marriage and marriage under the Act (the Act being the Matrimonial Causes Act). There is a
type that combines both whereby the couple first conduct traditional/customary marriage and
same couple later proceeds to conducting the marriage under the Act. That type of double
conduct of the marriage by same couple is recognized as one and deemed to have been
conducted under the Act thereby relegating the traditional to mere conventional pre-marriage
ceremony. In Jadesimi v. Okotie-Eboh & ORS (1996) LPELR-1590(SC) the Supreme Court
described such marriage thus: "It is a matter of common knowledge that most people in Nigeria
who contract marriages under the Marriage Act, undergo a form of customary marriage earlier
as a matter of practice and adherence to the custom of their forefathers. Some refer to such
practice as "traditional engagement" while others simply refer to it as solemnization of
customary marriage. It is never intended by the practice that the marriage under the Marriage
Act should nullify the customary marriage or engagement but rather that it would supplement
the practice or custom. The parties are of course aware that by applying the Marriage Act to
their relationship, their marriage would become monogamous. However, it is matter of
common knowledge that inspite of the punishment provided under section 47 of the Marriage
Act against any of the parties entering another customary marriage, the malefolk in particular
observe the restriction more in breach than obedience with impunity. In my opinion, therefore,
the circumstances of Nigeria militate against the application of section 18 of the Wills Act,
1837 to nullify a will made prior to contracting a marriage under the Marriage Act. In holding
this view I am further strengthened by the fact that section 15 of the Wills Law of Western
Nigeria, Cap. 133 of the Laws of Western Nigeria, 1959, which contains the same provisions
as those of section 15 of the Wills Law of Delta, Edo, Lagos, Ogun, Ondo, Osun and Oyo State
respectively, exempts the revocation provided for by the Wills Act, 1837 from applying to
customary law marriages". PER UWAIS, CJN. (Pp. 25-26, Paras. A-A).

Family Law covers different aspects matrimonial issues including marriage, dissolution,
children custody and welfare, adoption, surrogacy, family members’ rights and obligations, etc.

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8.2.1 Marriage:
The Court’s pronouncement about the crucial role of marriage in society is instructive in
Olabiwonnu v. Olabiwonnu (2014) LPELR-24065(CA) “… Marriage is a very important
institution. It is the foundation of a stable society. It is the nucleus of society in that it is the
families that make the society. Marriages that are entered into and run out of by mere agreement
of parties certainly would not auger well for the society. The policy of the law therefore is to
preserve the institution of marriage. That is why marriages will not be dissolved on agreement
of parties to it. …" Per ABIRIYI, J.C.A. (P. 21, paras. C-G).

The Supreme Court in Amobi v. Nzegwu &ORS (2013) LPELR-21863(SC) held that "Marriage
under the Marriage Act generally means the legal union of a couple as spouses. In other words,
it is "the voluntary union for life of one man and one woman to the exclusion of all others."
See: Hyde vs. Hyde and Woodmansee (1866) LRP & D 130, per Lord Penzance." Per
ARIWOOLA, J.S.C. (P. 61, paras. E-F). That definition of marriage is restricted to the English
marriage. Customary law, which includes Islamic law by virtue of classification of Islamic law
under customary laws, marriages are recognised and are valid marriages. Unlike marriage
under the Act they do not exist to the exclusion of others as the choice of that customary
marriage may imply choice of polygamy. No certificate is issued for this kind of marriage.
Proof of customary marriage is not as protected as in marriage under the Act.

According to Okolonwamu & Anor v. Okolonwamu & Ors(supra), "How is customary marriage
proved? The Court in Agbeja v. Agbeja (1985) 3 NWLR (Pt 11) Pg.11 held that: "While the
evidence of the Head of the family who received the money is desirable, what is essential is an
eye witness account of the transaction. For a marriage under native law and custom to be valid,
there must be on the one side the ceremony of the giving of the bride for a marriage under
native law and custom." It is trite that the most common feature of customary marriages in
Nigeria is the payment of bride price and handling over of the bride to the groom. These are
the least and basic requirements of any Nigerian customary marriage. Thus the proof of an
existing customary marriage must contain the two. In this case, the appellants failed in proving
the marriage between their late mother (Jane Nwafulugu) and the deceased." Per
OGUNWUMIJU, J.C.A. (Pp. 44-45, paras. E-B).

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8.2.2 Dissolution:
This simply means bringing a marriage legally contracted to an end. In the case Olabiwonnu v.
Olabiwonnu (2014) LPELR-24065(CA) "...no marriage will be dissolved merely because the
parties have agreed that it be dissolved. It will not be dissolved merely because it is a contract
between two willing parties as the learned trial Judge held. Marriage is a very important
institution. It is the foundation of a stable society. It is the nucleus of society in that it is the
families that make the society. Marriages that are entered into and run out of by mere agreement
of parties certainly would not auger well for the society. The policy of the law therefore is to
preserve the institution of marriage. That is why marriages will not be dissolved on agreement
of parties to it. A decree for the dissolution of marriage would therefore only the granted if the
petitioner has proved that the marriage had broken down irretrievably and that the petitioner
finds it intolerable to live with the respondent. See Section 15 of the Matrimonial Act and
Damulak v. Damulak (2004) 8 NWLR (Pt. 874) 651." Per ABIRIYI, J.C.A. (P. 21, paras. C-
G).In OGUNTOYINBO v. OGUNTOYINBO (2017) LPELR-42174(CA) the court stated in
detail how and why marriage under the Act would be dissolve thus: "Section 15 of the
Matrimonial Causes Act sets out in detail the grounds for dissolution of a marriage. It provides
thus: 1. A petition under this Act by a party to a marriage may be presented to the Court by
either party to the marriage upon the ground that the marriage has broken down irretrievably.
2. The Court hearing a petition for a decree of dissolution of a marriage shall hold the marriage
to have broken down irretrievably if, but only if, the petitioner satisfies the Court of one or
more of the following facts- a. That the respondent has willfully and persistently refused to
consummate the marriage; b. That since the marriage, the respondent has committed adultery
and the petitioner finds it intolerable to live with the respondent; c. That since the marriage the
respondent has behaved in such a way that the petitioner cannot reasonably be expected to live
with the respondent; d. That the respondent has deserted the petitioner for a continuous period
of at least one year immediately preceding the presentation of the petition; e. That the parties
to the marriage have lived apart for a continuous period of at least two years immediately
preceding the presentation of the petition and the respondent does not object to a decree being
granted; f. That the parties to the marriage have lived apart for a continuous period of at least
three years immediately preceding the presentation of the petition; g. That the other party to
the marriage has, for a period of not less than one year failed to comply with a decree or
restitution of conjugal rights made under this Act; h. That the other party to the marriage has
been absent from the petitioner for such time and in such circumstances as to provide
reasonable grounds for presuming that he or she is dead. 3. For the purpose of Subsection (2)
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(e) and (f) of this section, the parties to a marriage shall be treated as living apart unless they
are living with each other in the same household. SECTION 16 of the MCA "1. Without
prejudice to the generality of Section 15(2) (C) of this Act, the Court hearing a petition for a
decree of dissolution of marriage shall hold that the Petitioner has satisfied the Court of the fact
mentioned in the said Section 15(2)(C) of this Act if the Petitioner satisfies the Court that:- (a)
Since the marriage, the respondent has committed rape, sodomy or bestiality; or (b) Since the
marriage, the respondent has, for a period of not less than two years; (i) Been a habitual
drunkard; or ?(ii) Habitually been intoxicated by reason of taking or using to excess any
sedative, narcotic or stimulating drug or preparation, or has for a part or parts of such a period,
been a habitual drunkard and had, for the other part or parts of the period, habitually been so
intoxicated; (c) Since the marriage, the respondent has within a period not exceeding five years:
(i) Suffered frequent convictions for crime in respect of which the respondent has been
sentenced in the aggregate to imprisonment for not less than three years; and (ii) Habitually
left the petitioner without reasonable means of support; or (d ) Since the marriage, the
respondent has been in prison for a period of not less than three years after conviction for an
offence punishable by death or imprisonment for life or for a period of five years or more, and
is still in prison at the date of the petition; or (e) Since the marriage and within a period of one
year immediately preceding the date of the petition, the respondent has been convicted of: (i)
Having attempted to murder or unlawfully to kill the petitioner; or (ii) Having committed an
offence involving the intentional infliction of grievous harm or grievous hurt on the petitioner
or the intent to inflict grievous harm or grievous hurt on the petitioner; or (f) The respondent
has habitually and wilfully failed, throughout the period of two years immediately preceding
the date of the petition, to pay maintenance for the petitioner: (i) Ordered to be paid under an
order of, or an order registered in a Court in the Federation; or (ii) Agreed to be paid under an
agreement between the parties to the marriage providing for their separation; or (g) The
respondent:- (i) Is at the date of the petition, of unsound mind and unlikely to recover, and (ii)
Since the marriage and within the period of six years immediately preceding the date of the
petition has been confined for a period of, or for periods aggregating, not less than five years
in an institution where persons may be confined for unsoundness of mind in accordance with
law, or in more than one such institution." The above paragraphs have thus set out in detail
what a petitioner must establish to be entitled to a decree of dissolution of his marriage under
Section 15(2) (C) MCA. The burden is on the Petitioner to prove not only the undesirable
behaviour of the Respondent which he is averse to but also that he finds it intolerable to
continue living with the Respondent. If the Respondent is unable to prove any of these
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allegations, his petition cannot succeed. The Sections have received statutory interpretation in
many decided cases of the highest Courts of the land … (as he then was) observed: "The
conduct of a respondent that a Petitioner will not be reasonably expected to put up with must
be grave and weighty in nature as to make further cohabitation virtually impossible. The
Petitioner must satisfy the Court that the Respondent has behaved in such a way that the
Petitioner cannot reasonably be expected to live with the respondent. The duty is on the Court
to consider whether the alleged behaviour is one in which a right thinking person would come
to the conclusion that the Respondent has behaved in such way that the Petitioner could not
reasonable be expected to live with him taking into account the whole of the circumstances,
the characters and personalities of the parties." Per IYIZOBA, J.C.A. (Pp. 8-14, Paras. E-A).

In Wapanda v. Wapanda (2008) 1 NWLR (Pt. 1068) 364 at Pp. 392-393, paras. B-E Islamic
marriage dissolution was held thus: "Dissolution of an Islamic marriage 'khulu' (redemption)
can, in general arise under two circumstances:- (a) When both the husband and the wife
mutually decide on a separation. This happens where there is mutual consent from the spouses
to separate. The husband can divorce the wife with no difficulty subject to such terms, if any,
as may be agreed upon between them. On the other hand, if it was the wife who wants 'Khulu'
and the husband agrees to dissolve the marriage on certain conditions agreed upon between the
spouses, there arises no difficulty. The couple may not even have recourse to a law court. (b)
When it is only the wife who wants to get a release from the marriage tie, and the husband
appears unwilling to 'Khul'u' and insists on the subsistence of the marriage tie inspite of the
wife's resentment to it, the wife cannot dissolve the marriage under 'khulu' by herself. She has
to get it done through the agreement of the husband or through the judicial process. [Usman v.
Usman (2003) 11 NWLR (Pt.830) 109]" Per I. T. Muhammad, JCA.

8.2.3 Children Custody/Welfare:

In ELIZABETH O. FALOBI V. JOSEPH O. FALOBI (1976) SC.112/75 the Supreme Court
on the custody and welfare of children in marriage held "If any law is applicable at all to the
case in hand, particularly with respect to the custody and maintenance of the children of the
marriage, it is, we think, the Infants Law (Cap. 49 of the Laws of the Western State). Section
12 of the said Law reads:- "12(1)The court may, upon the application of the father or mother
of a child, make such order as it may think fit regarding the custody of such child and the right
of access thereto of either parent, having regard to the welfare of the child, and to the conduct
of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or
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discharge such order on the application of either parent, or, after the death of either parent, of
any guardian under this law; and in every case may make such order respecting costs as it may
think just. (2)The power of the Court under sub-section (1) of this section to make an order as
to the custody of a child and the right or access thereto may be exercised notwithstanding that
the mother of the child is then residing with the father of the child. (3) Here the court under
sub-section (1) of this section makes an order giving the custody of the child to the mother,
then, whether or not the mother is then residing with the father, the court may further order that
the father shall pay to the mother towards the maintenance of the child such weekly or other
periodical sum as the Court, having regard to the means of the father, may think reasonable.
(4) No such order, whether for custody or maintenance shall be enforceable, and no liability
there under shall accrue, while the mother resides with the father, and any such order shall
cease to have effect if for a period of three months after it is made the mother of the child
continues to reside with the father. (5) Any other so made, may, on the application either of the
father or mother of the child, be varied or discharged by a subsequent order."" Per Fatayi-
Williams, J.S.C. (Pp.14-15, Paras.A-C).

ELUWA v. ELUWA (2013) LPELR-22120(CA) explained custody of children in marriage in

dissolution as follows: "The High Court had rightly restated the position of the law in its
judgment that in determining the issue of custody of children in matrimonial proceedings, the
welfare of the children is of paramount importance and a vital factor, though not alone, to be
taken into account. See Otiti v Otiti (supra); Nana v Nana (2006) 3 NWLR (966) 1; Williams
v Williams (1987) 2 NWLR (54) 66; Odogwu v. Odogwu (1992) 2 NWLR (225) 539. In
deciding what the welfare of a child is, factors which have been considered relevant by the
courts include:- a) degree of familiarity between the child and each of the parents respectively,
b) the amount of affection between the child and each of the parents, c) the respective income
and position in life of each of the parents d) the arrangements made by the parties for the
education of the child e) the fact that one of the parents now lives as man and wife with a third
party who may not welcome the presence of the child, f) the fact that young children should as
far as practicable, live and grow up together g) the fact that in cases of children of tender ages
should, unless other facts and circumstances make it undesirable, be put under the care of the
mother, h) the fact that one of the parents is still young and may wish to marry and the child
may become an impediment. These factors are only some to be considered and so each case is
to be decided on the peculiar facts and circumstances placed before the court in the proceedings.
See Lafun v Lafun (1967) NMLR, 401; Williams v Williams (supra); Alabi v Alabi (2007) 9
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NWLR [1039) 297; Afanja v Afanja (1971) 1 U.I.L.R. 105; Odogwu v Odowgu (supra)." Per
GARBA, J.C.A. (Pp. 66-67, paras. A-B).
Concerning the welfare of the children ALABI v. ALABI (2007) LPELR-8203(CA)
expounded thus "Although misconduct on the part of the party to the suit is not the paramount
consideration, where parties have made equally laudable arrangement for the welfare of the
child and its upbringing, misconduct may tilt the balance in favour of the other party. Also
where there are persistent acts of misconduct and moral depravity by one of the party this may
be evidence of unsuitability of that party to be entrusted with the custody of the child see Lafun
v. Lafun (1967) NMLR 401, where it was held that owing to the moral degeneracy of the
respondent (mother) it would not be in the best interest of the child for the respondent to have
access to the child who was in her formative years and could easily be negatively influenced.
Thus certain relevant criteria must be considered in the determination of the welfare of the child
as in this case and they include:- 1. The degree of familiarity of the child with each of the
parents (parties); 2. The amount of affection by the child for each of the parent and vice versa;
3. The respective incomes of the parties; 4. Education of the child; 5. The fact that one of the
parties now lives with a third party as either man or woman; and 6. The fact that in the case of
children of tender age's custody should normally be awarded to the mother unless other
considerations make it undesirable etc." Per AGUBE J.C.A. (Pp. 48-49, paras. F-E).

8.3 Land Law

Land law is that subject area in law which regulates the ownership, rights and duties that exist
on land. Land law is largely regulated by statute, in this case the Land Use Act 1978. The
Supreme Court per Achike JSC in UNILIFE DEVELOPMENT COMPANY LTD. v.
ADESHIGBIN & ORS. (2001) LPELR-3382(SC) defined land as "Immovable property or
'lands' include land and everything attached to the earth or permanently fastened to anything
which is attached to the earth and all chattels real". (P. 21, para. B-C).
Idundun v Okumagba159 outlined the means by which a person may acquire interest or title in
land as recognized in law as follows:
1. Proof by traditional Evidence
2. Proof by Production of Documents of title directly authenticated.
3. Proof by Acts of Ownership in and over the land in dispute such as selling, leasing,
making grant or farming on it or portion thereof extending over a sufficient length of

159
(1976) 9-10 S.C 227

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 time numerous and positive enough to warrant the inference that the persons exercising
such appropriating acts are the true owners of the land.
4. Proof by acts of long possession and enjoyment of the land which prima facie maybe
evidence of ownership not only of the particular piece of land with reference to which
such acts are done, but also of other land so situate and connected there with by locality
or similarly that the presumption under section 46 and Section 146 of the Evidence Acts
applies and the inference can be drawn that what is true of one piece of land is likely to
be true of the other piece of land.
5. Proof by possession of connected or adjacent land in circumstance rendering it
probable that the owner of such connected or adjacent land would in addition be the
owner of the adjacent land.

8.3.1 Ownership of Land:

It is instructive that land can no longer be owned absolutely by anyone based on the provisions
of the Land Use Act, 1978. Land is vested in the President and the Governors respectively for
federal land and state land. Even the Governors are trustees holding it for the benefit of the
citizens of Nigeria.160 See section 1 of the Land Use Act which states “Subject to the provisions

160
HUEBNER v. AERONAUTICAL INDUSTRIAL ENGINEERING & PROJECT MANAGEMENT CO.
LTD (2017) LPELR-42078(SC) ruled that "Having come to the conclusion that the disputed property was
acquired by the Appellant, the question that agitates my mind is whether the Appellant was qualified and had
the capacity to hold legal estate in land in Nigeria. The law is settled that equity does not operate in vacuum.
In answer to this question, learned counsel for the Respondent submitted that the Appellant knew and had
consistently maintained the fact that he as an alien cannot hold title to land by virtue of the relevant provisions
of the Nigerian Law relating to landed property. Learned counsel further submitted that since the Appellant
is barred from holding title to land under the Land Use Act 1978, he could not hold any legal interest over
the disputed property which is capable of being entrusted to the Respondent. In aid, learned counsel cited the
case of Chief S. O Ogunola & 6 Ors v Hoda Eiyekole & 9 Ors (1990) 4 NWLR (Pt. 146) 632 at 642 paragraphs
B-D. In that case, my learned brother Olajide Olatawura (JSC) of blessed memory who delivered the lead
judgment, said:- "The learned trial Judge in interpreting Section 36(1) of the Land Use Act placed much
reliance on the word ANY to include foreigners - Section 1 of the Act specifically limits its benefits to
Nigerians. It is my view that a non-Nigerian cannot apply for a statutory or customary right of occupancy
because that Section 36(1) provides for ANY PERSON: Aliens are not Nigerians. I reproduce Section 1 of
the Act if only to re-emphasize that the Act was promulgated for the benefit of Nigerians: "1. Subject to the
provision of this Decree, all land comprised in the territory of each State in the Federation are hereby vested
in the Military Governor of that State and such land shall be held in trust and administered for the use and
common benefit of all Nigerians in accordance with the provision of this Decree." In their concurring
judgment, my lords Obaseki, Karibi Whyte and Wali JJSC agreed entirely with the view expressed by
Olatawura JSC. Agbaje JSC dissented. At page 656, he held:- "In my judgment a non-Nigerian who is a
holder of land is entitled to the benefits of Section 36{1) of the Act provided the non-Nigerian in the words
of the definition section of the Act is a person entitled to a right of occupancy or a person to whom a right of
occupancy has been validly assigned." Learned counsel for the Appellant has urged this Court to adopt the
dissenting view of Agbaje JSC as it is more in accord with the law that creates trust. In alternative learned
counsel invited this Court to look further into this matter and if necessary depart from the relevant holding,
especially the dictum of Olatawura JSC. I wish to state clearly that the views expressed by my lord Agbaje
JSC was raised in a dissenting judgment. A dissenting judgment, however powerful, learned and articulate is

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of this Act, all land comprised in the territory of each State in the Federation are hereby vested
in the Governor of that State and such land shall be held in trust and administered for the use
and common benefit of all Nigerians in accordance with the provisions of this Act.”

The title a person can acquire in land subsequent to the Land Use Act (LUA) 1978 is at best
lease of 100 years minus one. Other aggregate of titles on land are leasehold (long and short),
rent, possessory, etc. Prior to the LUA land was vested in the customary land owners
predominantly families or communities. But the LUA systematically took over all those titles
by the provisions of section 20 of the Act which provides that
“21. It shall not be lawful for any customary right of occupancy or any
part thereof to be alienated by assignment, mortgage, transfer of
possession, sublease or otherwise howsoever -
(a) Without the consent of the Governor in cases where the property
is to be sold by or under the order of any court under the provisions of
the applicable Sheriffs and Civil Process Law; or
(b) in other cases without the approval of the appropriate Local
Government.

22. It shall not be lawful for the holder of a statutory right of occupancy granted by the
Governor to alienate his right of occupancy or any part thereof by assignment, mortgage,
transfer of possession, sublease or otherwise howsoever without the consent of the Governor
first had and obtained:
(1) Provided that the consent of the Governor-
(a) shall not be required to the creation of a legal mortgage over a
statutory right of occupancy in favour of a person in whose favour
an equitable mortgage over the right of occupancy has already been
created with the consent of the Governor:
(b) shall not be required to the reconveyance or release by a mortgage
to a holder or occupier of a statutory right of occupancy which that

not the judgment of the Court and therefore not binding. The judgment of the Court is the majority judgment
which is binding. See Orugbo v Una (2002) 16 NWLR (Pt. 792) 175 at 208 Paragraphs B-C. The law under
which the case of Ogunola & Ors v Eiyekole (supra) was decided, that is the Land Use Act 1978, has not
been repealed or altered. It is still the extant law that regulates land administration in this country. The call
therefore on this Court to depart from the said decision is without merit. I entirely associate myself with the
decision of my learned brothers in Ogunola & Ors v Eiyekole (Supra) and hold that the Appellant being an
alien had no legal capacity to hold interest in land in Kajuru Local Government Area of Kaduna State. This
being so and by virtue of the Latin Legal Maxim, Nemo dat quod non habet, the Appellant cannot benefit
from property which he was incapable of owning." Per GALINJE, J.S.C. (Pp. 13-16, Paras. A-B).

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 holder or occupier has mortgaged and that mortgage with the
consent of the Governor:
(c)to the renewal of a sub-lease shall not be presumed by reason only
of his having consented to the grant of a sub-lease containing an
option to renew the same.
(2) The Governor when giving his consent to an assignment mortgage
or sub-lease may require the holder of a statutory right of
occupancy to submit an instrument executed in evidence of the
assignment, mortgage or sub-lease and the holder shall when so
required deliver the said instrument to the Governor in order that
the consent given by the Governor under subsection (1) may be
signified by endorsement thereon.”

Sections 21 and 22 provide that any alienation of customary land and the holder of statutory
right of occupancy by assignment, mortgage, transfer of possession, sublease or otherwise
howsoever. The court in FARMERS SUPPLY COM KDS LTD V. MOHAMMED (2009)
LPELR-8196(CA) endorsed this position thus "...Apparently, the same restraint applies to the
holder of a customary right of occupancy and a holder of a statutory right of occupancy, and
so the question of whether the land in dispute is in an urban area or not, which parties dwelt
on, is of no moment in this appeal." Per AUGIE, J.C.A. (Pp.26-27, Paras. D-B).

Alienation means parting with the title to a property. In FAGGE v. AMADU (2015) LPELR-
25920(CA) the court held: "It is settled law that where a piece or parcel of land has been sold
or granted to party, there cannot be a later sale or grant of the same piece or parcel of land to
another party because as at the time of the later sale or grant, the vendor will have nothing in
law to sell. Therefore, where two contesting parties trace their title in respect of the same piece
of land to the same grantor, the later in time of the two parties to obtain the grant cannot
maintain an action against the party who first obtained a valid grant of the land from such a
common grantor because the grantor, having successfully divested himself of title in respect of
the piece of land in question by the first grant, would have nothing left to convey to a
subsequent grantee under the principle of nemo dat quod non habet, as no one may convey
what no longer belongs to him - Adelaja Vs Fanoiki (1990) 2 NWLR (Pt.131) 127, Anyaduba
Vs Nigeria Renowned Trading Co (1992) 5 NWLR (Pt 243) 535, Tewogbade Vs Obadina
(1994) 4 NWLR (Pt.388) 326, Dantsoho Vs Mohammed (2003) 6 NWLR (Pt 817) 457, Ibrahim
Vs Mohammed (2003) 6 NWLR (Pt 817) 615, Ibrahim Vs Osunde (2009) 6 NWLR (Pt.1137)
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382, Omiyale Vs Macaulay (2009) 7 NWLR (Pt 1141) 597. In Adeagbo Vs Williams (1998) 2
NWLR (Pt. 536) 120, Musdapher, JCA (as he then was) at page 128 E-F put the point thus:
"Both parties claim to have bought the disputed land from the family. The learned trial Judge
found as a fact that the respondent bought the land in 1975, while the appellant bought the land
in December, 1976. It is clear to me that as at December, 1976, the Okota family had no vested
right or any interest in the land to lawfully transfer it by sale or in any other manner to anybody.
This means that the respondent has proved a better title than that of the appellant ..." Also, in
Auta Vs Ibe (2003) 13 NWLR (Pt 837) 247, Iguh, JSC explained the Principle at page 272 A-
E as follows: "In this regard, the respondent's customary right of occupancy in respect of the
land in dispute, Exhibit F, was issued by the Jalingo Local Government on the 31st of October,
1981. Between 1981 and 1984, he commenced and completed the erection of a house thereon.
On the other hand, the appellant's customary rights of occupancy, Exhibits A and B, were
issued by the same Jalingo Local Government on the 5th January, 1982 and 20th February,
1985 respectively. It is clear from the above facts that even if exhibits A and B were to relate
to the land in dispute, the respondent's title must in law take priority over that of the appellant.
Besides, it is settled law and in accordance with common sense that after a party has effectively
divested himself of his interest in land or other res, no right naturally vests in him to deal with
such land or res any further for nemo dat quod non habet, meaning that no one can give that
which he does not have ... Accordingly, the Jalingo Local Government having lawfully granted
the piece or parcel of land in dispute to the respondent in 1981 was left with nothing to grant
to the appellant subsequently in 1983 or 1985 during the subsistence of the respondent's grant."
Per ABIRU, J.C.A. (Pp. 33-35, Paras. A-E).

But to alienate under sections 21, 22 and 26 governor’s consent must be obtained otherwise
such alienation will be void and never took place in the eye of the law. Alienation include:
i) Assignment: According to JULIUS BERGER NIGERIA PLC & ANOR. V. TOKI
RAINBOW COMMUNITY BANK LTD. (2009) LPELR-4381(CA) "...assignment
means to give something to some body for their use or benefit. It also may mean to
transfer right, property or title from the person/s legally entitled to them to somebody
else for their benefit. See page 61 of the Oxford Advanced Learner's Dictionary (of
Current English) 5th Edition by A.5. Hornby. In this context, a person/party legally
entitle to property has the exclusive authority and power to give or transfer them to
somebody else in any manner permitted by law. That can be done either directly or by
proper directives to that effect. This meaning of assignment is not far from the
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 connotation of the word in law as defined in Black Law Dictionary 6th Edition, page
119 as:- "The act of transferring to another all or part of one's property, interest or
rights". From the above definitions it is clear therefore that a person entitled to any
rights, benefits, interest title to property can validly transfer them to another who will
thereupon be entitled thereto. The question I now ask is what in law are the essential
requirements which make an assignment of such benefits, interests or title to property
effective? Speaking generally, they include:-(1) ownership of or entitlement to the
benefits, interest, rights or title to property by the assignor; (2) the absolute transfer in
writing of such benefits, interests, rights or title to property to person/named therein;
(3) Where, as in the present appeal, the benefits, rights and interests are in possession
or custody of 3rd party, there is the requirement that the assignor should notify that 3rd
party in writing of the assignment. See Chitty on Contracts Vol. 1 paragraph 19 - 007
at page 1166, Halbury's Laws of England, 4th Edition, volume 6 paragraphs 12 at page
9. It is however to be noted that no particular form or mode is prescribed or required by
law for a legal assignment as long as the assignor absolutely and unequivocally
indicates the transfer of the benefit, interest or title to the assignee. Once the above
requirements are met, an assignment will be effective in law and the assignee would be
entitled to the subject of the transfer and a claim thereto." Per GARBA, J.C.A (Pp. 28-
30, paras. E-A).
ii) Mortgage: According to the court in Suberu v. A.I.S. & L. Ltd. (2007) ALL FWLR (Pt.
380) 1512 at 1526 Paras. B - C (CA) "A mortgage is a conveyance of land or an
assignment of chattels as a security for the payment of a debt or the discharged of some
other obligation for which it is given. The security is redeemable on the payment or
discharge of such debt or obligation, any provision to the contrary notwithstanding."
Per Muntaka-Coomassie JCA. It is to be noted that the most essential nature of a
mortgage is that it is a conveyance of a legal or equitable interest in a property with a
provision of redemption. That is, upon repayment of the loan, the conveyance shall
become void or the interest shall be reconvened.
iii) Transfer of possession: The Court in SEVEN-UP BOTTLING COMPANY PLC v.
AJAYI (2007) LPELR-8765(CA) defined transfer thus: "In Blacks Law Dictionary
Transfer means "To convey or remove from one place to another, specifically to change
over possession or control of." Per SHOREMI, J.C.A (Pp. 22-23, paras. F-A).In W.A.C.
Ltd v. Yankara (2008) 4 NWLR (Pt. 1077) 323 at P. 339, paras. B-C the Court held
concern in transfer of possession "If a person sells his land or landed property to another
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 but fails to put the person in possession, he retains possession. The payment of money
by the other person and acknowledgement of receipt of money by the owner does not
per se amount to transfer of possession to the purchaser. There must be more, either a
conveyance or an assignment duly executed in his favour, or a physical entry into
possession by the purchaser to clothe him with an equitable title in the first instance,
and later a legal title by order of specific performance. [Folarin v. Durojaiye (1988) 1
NWLR (Pt. 70) 351; Eya v. Qudus (2001) 15 NWLR (Pt.737) 587.]" Per Ariwoola,
JCA.
iv) Sub-lease: The Supreme Court in TANKO v. ECHENDU (2010) LPELR-3135(SC)
defined sublease thus "Black's law Dictionary 6th Edition at page 1425 describes a
sublease as "a lease executed by the lessee of land or premises to a third person
conveying the same interest which the lessee enjoys but for a shorter term than that
which the lessee holds, or a transaction whereby a tenant grants interest in leased
premises less than his own." Per TABAI, J.S.C. (Pp. 21-22, paras. G-B).

1. In Nigeria, two major strands of marriages exists viz customary marriage and
……………….(a)traditional marriage (b)white marriage (c)church marriage
(d)marriage under the Act
2. Which of the following is not covered by Family Law? (a)marriage (b)dissolution
(c)custody and welfare of children (d) adaptation of children
3. Land matters are majorly regulated by statute. (a) true (b)false
4. The assignment of land as a security for the payment of debt or discharge of some
obligation is known as………… (a)land assignment (b)conveyance (c)mortgage (d)sale
of land

1. (d) marriage under the Act

2. (d) adaptation of children
3. (a) true
4. (c) mortgage

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8.4 Equity and Trusts
Another substantive aspect of private law is the principles of equity and law of trusts. Both are
discussed jointly here because law of trusts is a device of equity.

8.4.1 Equity:
Equity it will be recalled complements common law to mitigate the harshness of common law.
The crux of equity is substantial justice. Aristotle refers to equity as superior justice. Equity is
based on reason (wisdom), discretion and conscience. Although it is often discussed as an
English Law development, in reality it is a universal concept that permeates all societies. A
display of equity can be gleaned from the Biblical story of King Solomon’s adjudication over
the dispute between two women who laid claim to the survivor of their two children. King
Solomon had asked that the surviving child be cut into two so that half goes to each of the
women. Conscience displayed by the women gave King Solomon the true mother between the
two mothers. One agreed that the child be cut into two meaning it will be killed. The true
mother pleaded for that the child be given to the other women not able to bear the death of her
child.

The court explained equity in Ogbeide v. Osifo (2007) Vol. 37 WRN 61 at 79 - 80, lines 25 -
15 (CA) this way: "Equity is a source of law, which has always retained the characteristics of
infusing elements of fairness or justice into the legal system as a whole by the very process of
mitigation of strict legal rules. It must however be realized that this characteristics, if care is
not taken, is very often suppressed by technical legal reasoning or even worse still, nullified in
preference for a rigid rule-based system of justice. This is a serious defect, which to my mind,
always stems from two sources; or narrow conception of property law and our much often
adherence to legal positivism. That law, in its raw form, is rigid admits of no argument. it is
equitable principles that do water down this rigidity. It is equitable principles that do water
down this rigidity. It therefore seems to me that maxims of equity, if properly understood
constitute parameters for the legal determination between conscionable and unconscionable
conduct. Strict application of raw law to the case at hand in the face of the totality of the
evidence before, the trial court and thus declaring exhibit B as having no legal value will
definitely work avoidable injustice to the case at hand. I am of the firm view that if these two
equitable principles i.e. 1. Equity looks to the intent, rather than to the form; and 2. Equity
imputes an intention to fulfill and obligations are applied to his case and they must be applied
if it is agreed that equity concerns itself with standards of conscience, fairness and equality, it
146
protects relationships of trust and confidence and above all it grants the court discretionary
approach to the grant of the relief where the justice of the case demands it, then exhibit B must
be held out as a document freely entered into by the parties thereto." Per Aderemi, JCA.

Equity does not work by laws. It works through doctrines called maxims. There were twelve
basic maxims of equity.
1. Equity will not suffer a wrong without a remedy. Where there is a right there is a remedy
(in Latin ubi jus ibi remedium). Although common law based on technicality may deny a
litigant remedy even though a right can be identified, equity will not. It will ensure a remedy
is provided.
2. Equity follows the law:“Accordingly, where rigid or strict adherence to the letters of the
statute will result in absurdity, unfairness or injustice the courts in their interpretative and
equitable jurisdiction will yield to overriding interest of justice and allow substantial justice
to prevail. One of the readily available tools in this regard is the principle of equity that
looks at and upholds the substance and not the form." Per EKO, J.C.A. (P. 19, paras. A-
B).161
3. Where there is equal equity, the law shall prevail. This principle comes into effect where
there are competing equitable interests. Where one of the parties with competing equitable
interests has in addition legal interest even where one equity was prior to the legal interest,
as long as the interests are equal meaning acquired with value without notice the one with
legal interest in addition shall prevail.
4. Where the equities are equal, the first in time shall prevail. Similarly, where the equities
are equal without either having additional legal interest as in 3 above the first in time takes
priority above the latter.162
5. He who seeks equity must do equity. Since equity demands fairness, both parties in the
court must be ready to abide by the dictates of equity which is acting on conscience.It was
held in OLUTIDE & ORS v. HAMZAT & ORS (2016) LPELR-26047(CA) that "This
Court would not compromise justice and in fact no Court should ever be seen to directly or
indirectly, advertently nor inadvertently to be a purveyor or conveyor in the subvention of
justice. He who seeks equity must do equity, a seeker for enforcement of his fundamental
Human Rights with tarnished honesty and truth will only incur deficient credentials in the

161
UZOMA V. ASODIKE (2009) LPELR-8421(CA)
162
ARILEWOLA & ORS. v. GBOLADE & ORS. (2012) LPELR-7882(CA)

147
 eye of the law. This Court will not be seen to permit the invocation of human rights to cover
up a criminal act." Per DENTON-WEST, J.C.A. (P. 25, Paras. B-D).
6. He who comes into equity must come with clean hands. This maxim is twin of 5 above
which states that he that comes to equity must do equity. In ALALADE V. NATIONAL
BANK OF NIGERIA LTD. (NO.2) (1997) LPELR-5540(CA) the Court amplified the
maxim as "One of the doctrines of equity is that he who comes to equity must come with
clean hands or must do equity: see Emeshie v. Abiose (1991) 2 NWLR (Pt.172) 192 at 200.
What this means is simply that a person who seeks a relief which the strict common law
would normally have denied him makes a resort to conscience and so he must hide no facts
or not misrepresent them and must show that he has done nothing either by omission or
commission that ought to disentitle him from getting the relief. The appellant here did not
come with clean hands to seek the equitable remedy of stay of execution. All through he
showed himself lacking in truth and candour, always deliberately." Per UWAIFO, J.C.A.
(Pp. 10-11, paras. E-A).
7. Delay defeats equities.
8. Equity does not aid the indolent. Also, the maxim in 7 above is close to that of 8. Equity
expects a party to act promptly and never to delay otherwise the person shall be deemed to
have slept over his right in which case the other party in error after some time may enjoy
the benefit of the right which belongs to another. See COLITO (NIG.) LIMITED & ANOR
v. DAIBU & ORS (2009) LPELR-8216(CA)"the equitable maxims that equity aids the
vigilant and that delay defeats equity are aptly applicable. The Supreme Court, per Karibi
- Whyte, J.S.C, in Akapo v. Hakeem- Habeeb (1992) 7 SCNJ 143 - 145 succinctly captured
the mood of the courts where there is a delay in bringing an application of this nature, when
he posited inter alia: "The effect of delay was also pronounced upon by this court in Kotoye
v. CBN & Ors (1989) 1 NWLR (pt. 98) 419 where Nnaemeka Agu, J.S.C said: - Conduct
of parties has also, quite often been relevant factor in the consideration of whether or not
to grant an application for interlocutory injunction as with permanent injunction Also delay
in bringing the application will defeat it because such a delay postulates that there is no
urgency in the matter and destroys the very basis for a prompt relief by way of interlocutory
injunction" Per AGUBE J.C.A (P. 86,Paras. A-F).
9. Equity looks on that as done which ought to be done. In other words, Equity imputes an
intention to fulfill and obligations.

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10. Equality is equity. A maxim of equity stating that if there are no reasons for any other basis
of division of property, those entitled to it shall share it equally.163
11. Equity looks to the intent, rather than to the form. The maxim means that equity is more
concerned with real issue and not the way the issue is on the face value or according to its
technicality.164
12. Equity acts inpersonam. In law, there are two classes of action and judgment enforcement
jurisdictions, i.e., enforcement against the particular person (in personam) and enforcement
against the object/property (in rem) in question.165 The court of equity recognizes these two
jurisdictions but applies in personam most. Its preoccupation with acting against the person
is founded on the reasoning that the person is usually the owner of in rem. Where therefore
there is jurisdictional challenge of location of property action in personam may cure the
challenge.

In all, the case of OPARAJI V. AHIHIA (2011) LPELR-4514(CA) shows the links between
the maxims when it held "Equity follows the law. And it looks at the substance and not the
form. Equity also acts in personam, and takes as done that which ought to have been done. The
court of law and justice will therefore hold a party to his bargain where it is shown that the
party executed a document, albeit wrongly as Appellant is suggesting, by which he has, upon
material consideration received, divested himself of title in favour of another. …" Per EJEMBI
EKO, J.C.A. (Pp. 11-12, paras. E-B).

8.4.2 Trusts:
Trust law as earlier stated is a device of equity. It reflects the ingenuity of equity acting in
personam by its ability to split ownership in property and vesting them in different persons.
Trust may be described as a relationship created by equity whereby a person(s) who owns some
property called the settlor(s) transfers his legal title in the property to another person(s) called
the trustee(s) for ultimate ownership or benefit of a third person(s) called the
beneficiary(beneficiaries).The Supreme Court in HUEBNER v. AERONAUTICAL
INDUSTRIAL ENGINEERING & PROJECT MANAGEMENT CO. LTD. (2017) LPELR-
42078(SC) defined trust as "In its legal sense, "a trust" is the relationship, which arises

163
https://www.oxfordreference.com/view/10.1093/oi/authority.20110803095755518
164
See Ogbeide v. Osifo (2007) Vol. 37 WRN 61 at 79 - 80, lines 25 - 15 (CA)
165
Morris E. Cohn, Jurisdiction in Actions in Rem and in Personam, 14 ST. LOUISL. REV. 170 (1929).
Available at: https://openscholarship.wustl.edu/law_lawreview/vol14/iss2/5

149
wherever a person called the trustee is compelled in equity to hold property, whether real or
personal, and whether by legal or equitable title, for the benefit of some persons (of whom he
may be one and who are termed cestuis que trust) or for some object permitted by law, in such
a way that the real benefit of the property accrues, not to the trustee but, to the beneficiaries or
other object of the trust…." Per AUGIE, J.S.C. (Pp. 52-53, Paras. D-F).

8.4.2 Classifications of Trusts:

There are different kinds of trusts. There are two major classifications of trusts: express and
implied trusts. Where a settlor sets out to create a trust intentionally and creates it, it is called
express trust, but where a trust is read to the action of one not intentionally setting out to create
one you have implied trust. According to NWANKWO & ANOR v. NWANKWO (2017)
LPELR-42832(CA), "A trust can be express or implied. When a trust is created intentionally
by the act of the Settlor, it is called an express trust. But where the legal title to property is in
one person and the equitable right to the beneficial enjoyment of the same property is in
another, a Court of equity may from those circumstances infer an implied trust. Also, a person
incapable of being an express trustee may well be a trustee of an implied, resulting or
constructive trust. See Adekeye v. Akin-Olugbade (1987) 3 NWLR Pt. 60 Pg. 214." Per
OGUNWUMIJU, J.C.A. (P. 15, Paras. D-F).

8.4.3 Express trust:

For there to be an express trust three things must be found in the trust created known as
certainties of trust.
1. Certainty of intention/word: The words expressed in the creation of a trust must be
clear and unambiguous such that it can be said that the settlor truly intended to create
it. Where the words are ambiguous or vague the court would hold that there is no
express trust. Words such as hope, may, belief would be deemed precarious and not
definite.
2. Certainty of subject: The property being entrusted by the trustee must be clearly
identifiable. Statement such as all my property found in Lagos is too vague for
identification in this regard and so the trust may fail.
3. Certainty of object: The beneficiaries must be well spelt and identified as well.
In OLAM (NIGERIA) LIMITED v. INTERCONTINENTAL BANK LIMITED
(2009) LPELR-8275(CA) it was held that "… the test for express trust is the
existence of the three certainties set out …, that is when a trust is created
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 intentionally by the act of the settlor. .. Under certainty of intention the words used
must be examined to see whether the intention was to impose a trust upon the donee.
The intention must also be genuine and not a stain as to where the settler did not
intend the trust to be acted upon but entered into it for same ulterior motive such as
deceiving creditors."Per NWODO J.C.A.(P. 43, paras. A-F).

8.4.4 Implied Trusts:

The Court in OLAM (NIGERIA) LIMITED v. INTERCONTINENTAL BANK LIMITED
(2009) LPELR-8275(CA) stated that "… There is also implied trust. This is where the legal
title to property is in one person and the equitable right based on the beneficial enjoyment of
the same property in another, a court of equity will from those circumstances infer an implied
trust. Therefore an implied trust is a trust founded upon the unexpected, but presumed intention
of the settlor. …."Per NWODO J.C.A.(P. 43, paras. A-F).

There are two types of implied trusts. They are resulting trust and constructive trust.
1. Resulting trust: According to the Supreme Court in GRACE MADU V. DR. BETRAM
MADU (2008) LPELR-1806(SC) "The doctrine of resulting trust is based upon the
unexpressed but presumed intention of the true owner. It arises in the two following
circumstances: 1. Where A makes a voluntary payment to B or pays (wholly or in part)
for the purchase of property which is vested either in B alone or in the joint names of A
and B, there is a presumption that A did not intend to make a gift to B; the money or
property is held on trust for A (if he is a sole provider of the money) or in the case of a
joint purchase by A and B, in shares proportionate to their contributions. 2. Where A
transfers property to B on express trusts, but the trusts declared do not exhaust the whole
beneficial interest. WestDeutsche Landesbank Girozentrale v Islington London Borough
Council (1996) 2 All ER 96." Per Aderemi, J.S.C. Also in AMAECHI & ANOR. V.
AMAECHI (2013) LPELR-20638(CA) the Court held thus: "...the 6th Edition of the
Black's Law Dictionary at page 1523 defines resulting trust as "one that arises by
implication of law, or by operation and construction of equity, and which is established
and consonant to the presumed intention of parties as gathered from the nature of the
transaction. It arises where the legal estate in a property is disposed, conveyed or
transferred but the intent appears or is inferred from the terms of the disposition." PER
OWOADE, J.C.A. (Pp. 32-33, Paras. G-B).

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2. Constructive trust: According to ANYAEGBUNAM v. OSAKA & ORS (1993) LPELR-
14919(CA) "In Beatty v. Guffenhein Exploration Company 225 N.Y. 380 at 386 (1919).
Cardozo, J., said:- "A constructive trust is the formula through which the conscience of
equity finds expression. When property has been acquired in such circumstances that the
holder of the legal title may not in good conscience retain the beneficial interest, equity
converts him into a trustee." Per UWAIFO,J.C.A. (Pp.17-18,paras.G-A). Also in,
IBEKWE V. NWOSU (2011) LPELR-1391(SC), "a constructive trust is an equitable
remedy that a court imposes against one who has obtained property by wrong doing. It is
imposed to prevent unjust enrichment and creates no fiduciary relationship. It is also
termed implied trust, involuntary trust, trust ex delicto; trust ex maleficio, remedial trust,
trust in invitum; trust de son tort." Per FABIYI, J.S.C.(P.10, paras. A-C).
It is instructive that anti-corruption cases are beginning to adopt constructive trust for
prosecution of offenders.

8.5 Wills and Administration of Estate Law

Wills and Administration of Estate Law deal with the principles of succession in the life of a
person upon his or her demise. The law recognizes a demise person as an estate and so all his
or her property in his/her lifetime becomes the property of his/her estate. There are principles
or laws regulating how the property is disposed to prospective beneficiaries.Wills are
testamentary instruments made by a settlor (testator) while alive whereby he transfers his
property to some beneficiary(ries) through some trustees. The instrument does not take effect
until after the death of the testator, meaning it is ambulatory. The Court in OSEMWINGIE &
ORS V. OSEMWINGIE & ORS (2012) LPELR-19790(CA) held that "A WILL is ambulatory.
It can be changed by the testator before his death. However, it is indeed a secret document,
kept away from the knowledge of the beneficiaries thereof until the demise of the testator. And
which is why, it is usually sealed and kept in the custody of the probate Registrar of the High
Court of Justice. It is strictly a confidential document, known only by the testator and a witness
with a Solicitor who prepared it for the testator. I think that is elementary enough which does
not require any hair- splitting or hard thinking to be comprehended and understood." Per
YAKUBU, J.C.A. (P.44, Paras.D-F).

The Court in Idehen v. Idehen(1991) LPELR-1416(SC) stated the purpose of a Will thus: "It
must be conceded that the chief if not the only aim of making Wills is to allow owners of
property or rights to indicate how their affairs on their death could be arranged. This involves
152
the persons to whom their property could be given or those to succeed them otherwise. - See
Adebiyi v. Sogbesan 16 NLR. 26. For instance the institution of family ownership which could
be created on intestacy, the nature and quantum of the interest which could go to a beneficiary
can be altered by testamentary disposition." PER KARIBI WHYTE, JSC. (P. 51, paras. D-G).
Further, the Court in the same case held that "Whereas making of written wills under statute is
clearly unknown at customary law, nuncupative Wills have always been recognised. Death bed
dispositions and often expressed wishes of the deceased are held sacrosanct and generally
observed." PER KARIBI-WHYTE, JSC (Pp. 54-55, paras. G-A).

In other words, Wills can be oral and can be written. Under the English law it can be either oral
or in writing although the law prefers written. Under customary law it is unwritten; oral as
shown in Idehen v Idehen supra.According to OKELOLA V. BOYLE (1998) LPELR-
2439(SC) it should be noted that "The validity or otherwise of any devise or bequest in a will
is dependent on whether the property so devised or bequeathed belonged to the testator at the
time of his death and not at the time of the making of the will." Per OGUNDARE, J.S.C. (P.
35, Paras. C-D).

8.5.1 Intestacy:
Where a man or woman dies without a will he or she is said to have died intestate. Death
intestate raises some legal implication depending on the choice of law of the deceased. By
choice of law is meant whether he or she chose English system through marriage under the Act
or chose Customary law system. According to CHUKWU v. OKOH (2016) LPELR-
42117(CA) "… To answer this question I shall draw inspiration from Professor B.O.
Nwabueze's Book titled Nigerian Land Law, 1982, Reprint, page 380 to 381 where the learned
author wrote as follows: "When a man dies, the devolution of his self-acquired property
depends upon whether or not he has made a will. lf he has made a will, the property will devolve
according to the directions contained in the will, and succession is described as testate. If he
has made no will, or has made one which at his death has become totally inoperative, he is said
to die intestate, and the devolution of his property will be governed entirely by the rules of law
prescribing the order of succession upon an intestacy. The distinction between testate and
intestate succession is of marginal importance only in customary law. Until the introduction of
wills in English form, intestacy was the rule, with but occasional instances of a dying man
indicating by a death-bed declaration how his property was to be distributed after his death.
Such oral death-bed declarations are the form usually cited of a customary will. No doubt the
153
Courts take cognizance of them, but it is questionable whether such instances of them as occur
do really justify treating testate succession as a separate institution of customary law.
Moreover, oral death-bed declarations, though they are often complied with out of respect for
the deceased, have not the same finality as wills in modern law; they can be and sometimes are
disregarded or modified by the elders of the deceased's family. Lloyd has summed up the
position thus: "A distinction between testacy and intestacy as in English law is almost
meaningless in Yoruba customary law. The tacit will of the Yoruba man has always been that
his property shall be distributed by the Babasinku according to the rules well known to
everyone. An old man will probably indicate whom he wishes as his babasinku and suggest
how his property might be shared. The expression of such wishes does not convey any title to
the prospective grantees. More definite is a curse made by a man that a son should not, after
his death, enter certain property; this will probably be obeyed by the son for fear of supernatural
punishment. In distributing property the family or the Courts will almost certainly heed wishes
implied in these curses, even if for no other reason than the pointlessness of ignoring what the
cursed individual believes." On the whole therefore, succession under customary law will be
treated as being entirely intestate. The customary law of intestate succession exhibits a great
amount of diversity of patterns, though it is possible to subsume these under two broad
categories of patrilineal and matrilineal succession. PATRILINEAL SUCCESSION; Among
the patrilineal societies, two main patterns of succession are found, viz: succession by all the
surviving issue jointly, and succession by a sole heir." As to when extended members of the
intestate's family may claim ownership and possession of the property, the learned author wrote
at page 381 to 382 as follows: "Succession by all surviving issue jointly: Unquestionably, the
most prevalent pattern of succession is succession by all surviving issue of an intestate jointly.
As has repeatedly been stated, on the death of a person intestate, then, pending actual division
or partition, and subject to any rights which the surviving spouse, if any may possess therein,
his or her real property devolves upon all his or her surviving issue jointly as family property,
with the eldest son as head and having all the powers of such head in relation to family land.
The deceased's parents, brothers and other collaterals have no right in it; inheritance is by the
issue to the exclusion of all other relatives, though if the children are all minors, the oldest
surviving brother usually acts as caretaker. Failing issue the order of succession is (i) brothers
(and sisters in some communities) of the whole blood; (ii) parents; (iii) half brothers (and half
sisters in some communities); (iv) brother's issue. In default of all these groups the next nearest
relative takes. Uterine brothers and sisters and other maternal relatives are excluded, succession
being confined strictly in the patrilineal line, unless the deceased was illegitimate. Issue
154
includes children and remoter descendants of the deceased. It has, however, been suggested
that a "grandson has no right of succession", and can only inherit through his father if the latter
survived the intestate, because "a son who dies in his father's lifetime has no succession rights
in his father's estate." While it is true that a child who predeceases his father has no right in the
estate, his own children are indisputably members of their grandfather's family, and they
"inherit as members of the family not by virtue of any estate left behind by their father." There
is therefore no question of their being entitled by right of representation. It is repugnant to the
whole notion of customary land tenure that a grandchild should be denied the right of
membership of his grandfather's family and of the right to share in the enjoyment of his land,
merely because his father predeceased the intestate. It is necessary to recall the nature of the
interest which the issues have in the land. Until actual division or partition none has a separate
right of ownership to the whole or any part of the land. The land is owned by the family as a
quasi-corporate group, and an issue's right therein is defined by reference to his membership
of the group; only the family as such quasi-corporate entity can dispose or authorize the
disposition of it. This is perhaps the most fundamental respect in which tenure of land under
customary law differs from tenure in English law. With some variations succession by all the
deceased's issue jointly as family property may be said to be of general application throughout
Nigeria, except in the few matrilineal societies shortly to be noticed and in the still fewer
communities where succession is by a sole heir. The variations relate in the main to the classes
of issue comprehended, the manner of division, and the rights of the surviving spouse, if any."
Per TUR, J.C.A. (Pp. 29-35, Paras. C-A).

Summary of Study Session 8

In this study session, principles of the Law of Tort are examined. Different types of torts such
as assault, battery, trespass, conversion, detinue, etc are discussed in details. Also, definition
and nature of law governing land ownership in Nigeria are robustly discussed. Principles of
Family Law, such as the concept and types of marriage, dissolution of marriage, child custody
and welfare are explained in details. Laws relating to will, administration of estate and issues
of inheritance are also examined.

155
Self-Assessment Questions
1. Briefly discuss major distinction between assault and battery
2. Explain the concepts of ownership and possession of land
3. Discuss the concept of dissolution of marriage
4. Examine the relevant law(s) governing will and administration of estate in Nigeria

Reference

1. I.O. Smith, Practical Approach to Law of Real Property in Nigeria (1999)

2. E.I. Nwogugu, Family Law in Nigeria. (1974)

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 STUDY SESSION 9
INTERNATIONAL LAW AND RELATED LAWS

Introduction
This session explains what makes which law international; identifies a number of laws
classified under international law; explain the basic content of international law; energy law;
admiralty law; environmental law; and health system law and policy.

Learning Outcomes for Study Session 9

1. At the end of this Study Session, the student should be able to explain what makes
which law international
2. Students should be able to identify a number of laws classified under international law
3. Students should be able to explain the basic content of international law; energy law;
admiralty law; environmental law; and health system law and policy.

9.1 International Law

What is international law? When it comes to classification of laws according to extent of
territorial coverage we have municipal or domestic laws and international laws. Municipal or
domestic laws are the laws made by a nation/state for the governance or regulation of the
conduct of the people within the territory of the nation/state. All who come within the territory
must obey the laws except for diplomats when they act within the precincts of their embassies.

International Law may be defined as the rules and principles that govern states in their
relations.166 The Soviet Academy of Sciences defined it as “the aggregate of rules governing
relations between states in the process of their conflict and cooperation, designed to safeguard
their peaceful co-existence, expressing the will of the ruling classes of these states and defended
in case of need by coercion applied by states individually”.

According to FBN PLC. v. ABRAHAM (2002) LPELR-5645(CA), "It is a well established

principle of International Law that a Nation State can only validly make laws covering its own
territory. The rules of court made under an enabling Law of Lagos State of Nigeria cannot have

166
U.O. Umozurike and Akinola Aguda (eds), Introduction to International Law (Spectrum Book Limited,
2001), 1

157
effect over transactions conducted in England and governed by English Law. Indeed the Rules
of a State High Court do not govern transactions conducted in another state within Nigeria. It
is therefore, a fundamental flaw in the argument of appellant's counsel to accept that a banking
transaction conducted in London, is subject to the Lagos State High Court Rules as to the court,
in which a suit could be brought." Per OGUNTADE, J.C.A.(Pp.6-7, Paras G-B).

9.1.1 Sources of International Law

The term source refers to the formal source, in the sense of origin, legal procedure and method
that create a legally binding rule from which the law derives its validity.
Article 38 of the Statue of the International Court of Justice enumerates the sources of
international law:
1. “the court whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
(a) International conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
(b) International custom, as evidence of a general practice accepted as law;
(c) The general principle of law recognized by civilized nations;
(d) Subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means
for the determination of the rules of law.
2. The provision shall not prejudice the power of the court to decide a case ex aequo
et bono (from equity and conscience), if the parties agree thereto.”

Where nation/states make laws through international agreements or treaties or through certain
agencies subscribed to by them such laws are referred to as international laws. Online Oxford
Dictionary defines international law as "a body of rules established by custom or treaty and
recognized by nations as binding in their relations with one another." The major sources of
international law from the definition are customary laws arising from the acceptable
interactions of the states on the one hand and international treaties or agreements or conventions
made by the states. The court in ABACHA & ORS v. FAWEHINMI (2000) LPELR-14(SC)
held that "The term "treaty" has been variously identified. Suffice it to say that a treaty is a
compact, an agreement or a contract-bilateral or multilateral - between sovereign States (two
or more) whereby they establish or seek to establish a relationship between themselves
governed by international law. A treaty, therefore, in a broad sense, is similar to an agreement
158
under the civil law. The difference between an ordinary civil contract (or agreement) and a
treaty is that while the former is an arrangement between individuals and derives its
bindingness from municipal or domestic law of a State, a treaty on the other hand derives its
binding force and effect from international law. See Article 2 of the Vienna Convention of May
23, 1969 which came into force on January 27, 1980. Thus, ordinarily, a treaty binds only States
parties to it just as a contract binds only individuals who are parties thereto. There is therefore
no justification for over-simplification of a treaty in terms of a contract. Under strict customary
international law, individuals are not subjects of international law nor were municipal or
domestic Courts called upon to control or administer treaty obligations between sovereign
States. See Walker v. Baird (supra) and Sobhuza v. Miller (supra)..." Per ACHIKE, J.S.C. (Pp.
87-88, Paras. E-E).Further the court in the same case held "... a treaty between two or more
sovereign States derives its binding force and effect from international law. The basis of the
binding force of a treaty as a contract is agreement and the recognition given to agreements
between States in international law as a law creating pact - Pacta Sunt Servanda. An "Act of
State" is essentially an exercise of sovereign power and hence cannot be challenged, controlled
or interfered with by municipal Courts." Per MOHAMMED, J.S.C. (Pp. 47-48, Paras. F-B).

For international treaty or instrument to become applicable in Nigeria according to section 12

of the 1999 Constitution the National Assembly must pass it into law. This position was
demonstrated in THE REG. TRUST. OF NATIONAL ASS. OF COMMUNITY HEALTH
PRACTITIONER OF NIGERIA & ORS. V. MEDICAL AND HEALTH WORKERS UNION
OF NIGERIA & ORS (2008) LPELR-3196(SC) thus: "It goes without saying that the basis for
that relief was the International Labour Organisation, in which cases it was incumbent on the
1st appellant to place the evidence of the domestication of that law and its applicability to
Nigeria, the law being an international one. Its proof of domestication in Nigeria is very
important if any court in Nigeria is to invoke and apply it to any litigation before it. It is of
paramount importance that any party who raises an issue or a law must show and convince the
court of the efficacy of reliability and applicability. In so far as the I.L.O. convention has not
been enacted into law by the National Assembly, it has no force of law in Nigeria and it cannot
possibly apply. See also Abacha v. Fawehinmi (2001) 51 WRN 29; (2000) 4 SCNJ 1; (2000)
4 S.C. (Pt. 11) 1; (2000) FWLR (Pt. 4) 533; (2000) 6 NWLR (Pt. 660) 228 at pages 288 - 289
where Ogundare, JSC of blessed memory had this to say: 'Suffice to say that an international
treaty entered into by the government of Nigeria does not become binding until enacted into
law by the National Assembly" Per Mukhtar and Onu, JSC.l
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9.1.2 Differences between International Law and other related terms
1. Municipal Law: the domestic law of a state regulating the conduct of individuals and
legal entities within it.167
2. Conflict of Laws: the body of rules that apply in cases before municipal courts when
there is a “foreign” (external or internal) element, or there is an issue of jurisdiction or
the enforcement of a foreign judgment or of a particular system of law different from
the ordinary such as a rule of customary law.168
3. Comparative Law: a comparative study of different legal systems.169
4. Regional International Law: a rule which operates within a particular region such as
those relating to diplomatic asylum and the rules on freedom of movement within
ECOWAS.170

9.2.3. Jurisdiction
Jurisdiction is simply the authority a state exercises over natural and juristic persons and
property within it. It may be classified as civil or criminal, it may also be exclusive and
concurrent. The former if only one state can exercise jurisdiction as in the case of territorial
jurisdiction, and the later, when more than one state can do so.

Levi classifies jurisdiction into:

Temporal: relating to the time a state acquires or loses personality.
Spatial: relating to the physical area over which a State has jurisdiction over persons, things
and transactions.
Personal: relating to the natural and juristic persons over which it has competence.
Material: relating to the subject matter of jurisdiction171.
Bin Cheng divides jurisdiction into three hierarchical orders:
Territorial
Quasi-territorial
Personal

167
U.O. Umozurike and Akinola Aguda (eds), Introduction to International Law (Spectrum Book Limited,
2001) 2
168
ibid
169
ibid
170
ibid
171
W. Levi, Contemporary International Law: A Concise Introduction (1979) 119-169.

160
Each of these is further divided into what he coined as ‘jurisfaction’ and ‘jurisaction’172. The
difference between them is the possession and the actual enjoyment of jurisdiction. A state may
legislate for its nationals in a foreign state (jurisfaction)173. It actually enjoys the power to
enforce the legislation on them on its own territory/ quasi-territory (jurisaction). It cannot do
so on foreign land in the absence of a consensual arrangement with the territorial sovereign.
The jurisfaction of one state on an individual may run concurrently with the jurisfaction of
other states or the jurisaction of another state. The jurisaction of two or more states cannot run
concurrently, only one state may enjoy jurisaction at a time, in the absence of consensual
arrangements. In the Lotus Case174 the PCIJ rejected the territoriality of Criminal Law and
ruled by a narrow majority that a state may legislate universally, as most do, on protective
principle175.

The hierarchy of Cheng’s order comes out clearly in the event of a conflict, territorial
jurisdiction supersedes quasi-territorial and personal jurisdictions; and in the event of conflict
between the last two, the former prevails176. In Hattan v. Republic of Tanzania177, a foreign
seaman secretly left a lady’s room where he spent the night , with her radio cassette. The captain
of the ship handed him over to the local police; he was subsequently convicted. Quasi-territorial
jurisdiction by inference, gave way to territorial jurisdiction.178

9.2 Energy Law

One of the basic needs of man is security. Security may come in different shades. One of such
shades is energy. Energy is a means to many ends ultimately for the development of the people
in a given society. Energy Law is the field of law concerned with creating, enforcing and
challenging laws that regulate energy use.179 Laws exist that regulate the creation and
harvesting of energy. There are laws that regulate taxation of energy use. Energy companies

172
U.O. Umozurike and Akinola Aguda (eds), Introduction to International Law (Spectrum Book Limited,
2001) 87
173
ibid
174
PCIJ (1927) Ser. A, No 10
175
ibid
176
B.Cheng, The Extraterrestrial Application of ‘International Law’ 18 CLP (1955) 132-152
177
557-D-69
178
U.O. Umozurike and Akinola Aguda (eds), Introduction to International Law (Spectrum Book Limited,
2001) 87
179
https://legalcareerpath.com/what-is-energy-law/, last accessed 18 July 2020

161
and the public alike must navigate energy laws as they relate to the sale, use and conservation
of energy resources.180

Many people may not realize how much energy laws and regulations impact their daily life.
Each time you put gasoline in your vehicle, you’re paying energy taxes. When you sell a
vehicle or renew your license plate, you pay fees to the state you live in. When you use power
in your home, you’re using energy from a power plant that complied with regulations to
conduct business. There are energy laws at federal, state and even local levels. Energy laws
and policies even impact international relations.181

According to an author “Energy does things for us. It moves cars along the road and boats on
the water. It bakes a cake in the oven and keeps ice frozen in the freezer. It plays our favorite
songs and lights our homes at night so that we can read good books. Energy helps our bodies
grow and our minds think. Energy is a changing, doing, moving, working thing. Energy is
defined as the ability to produce change or do work, and that work can be divided into several
main tasks we easily recognize: -
• Energy produces light. -
• Energy produces heat. -
• Energy produces motion. -
• Energy produces sound. -
• Energy produces growth. -
• Energy powers technology.”182

The laws regulating all aspects of energy access from production to distribution to consumption
to financing, taxation and environmental impact make up Energy Law. In other words, laws
affecting rights of access to energy, laws providing for all aspects of energy production, laws
determining the mode of supply/distribution of energy, laws relating to finance, taxing energy
production and supply/transportation, and laws regulating the impact of energy production,
supply and consumption all constitute energy law.

There are ten major sources of energy today which are classified into two categories of

180
https://legalcareerpath.com/what-is-energy-law/, last accessed 18 July 2020
181
ibid
182
http://cse.ssl.berkeley.edu/energy/Resources/Intro%20to%20Energy%20Reading.pdf

162
1. Non-renewable energy sources: The non-renewable energy sources are so-called because
they cannot be replenished within a short time and so could be depleted and exhausted
sometime in future. Examples are coal, petroleum, natural gas, propane, and uranium. They
are used to generate electricity, to regulate home temperature, to manufacture products, to
move vehicles, etc.

2. Renewable energy sources: These are opposites of non-renewable. They can be replenished
within a short time and so could be renewed in time. Examples are solar, wind, hydropower,
biomass, and geothermal. They are called renewable energy sources because their supplies
are replenished in a short time. They are also mainly used for making electricity.

It is argued that renewable energy sources are more environmental friendlier than non-
renewable energy sources.

9.2.1. Overview of the Nigeria’s Electricity Sector

The history of Nigeria’s electricity sector can be traced to 1886 following the installations of
two small generating sets that catered for the electricity need of the then colony of Lagos.183
Although the first generating plant was subsequently established in 1898 in Lagos Nigeria, it
is worthy of note that as at 1950, the system of electricity generation “was in the form of
individual electricity power undertaking scattered all over the towns”.184 As a result of an Act
of Parliament, the defunct Electricity Corporation of Nigeria was created in 1951. Furthermore,
the Niger Dams Authority was established in 1962 with the aim of developing hydro-electricity
and was later merged with Electricity Corporation of Nigeria.185 The outcome of this merger
was the emergence of the defunct National Electric Power Authority (NEPA) in 1972.186 This
merger did not, however, result to the resolution of Nigeria’s electricity challenges especially
as NEPA’s monopoly of Nigeria’s electricity sector arguably hampered its ability to meet
Nigeria's rising electricity demand in the 1990s.187 The subsequent unbundling of Nigeria’s
electricity sector in 2005 changed NEPA into Power Holding Company of Nigeria (PHCN).

183
O. Aigbovo and E. Ogboka, “Electricity Power Sector Reform Act 2005 and the Development of
Renewable Energy in Nigeria” (2016) 7(1) Renewable Energy Law and Policy Review, p. 21.
184
ibid
185
N. V. Emodi, “Integrating Renewable Energy and Smart Grid Technology into the Nigerian Electricity Grid
system” (2014) 5(5) Smart Grid and Renewable Energy, p. 221.
186
ibid
187
N. V. Emodi, “Integrating Renewable Energy and Smart Grid Technology into the Nigerian Electricity Grid
system” (2014) 5(5) Smart Grid and Renewable Energy, p. 221.

163
The emergence of PHCN did not change the epileptic nature of electricity supply in Nigeria.
The emergence of PHCN from NEPA, therefore, connotes a mere change of name.

Furthermore, the reforms introduced by the Nigerian government in its energy market which
entails the unbundling of the National Electric Power Authority (NEPA) which led to the
privatisation and liberalisation of Nigeria’s power sector and the establishment of an
Independent Regulatory Commission i.e. Nigerian Electricity Regulatory Commission
(NERC) did not make much impact in terms of generation of electricity as Nigeria’s electricity
problem remains unsolved.188 Oseni laments that notwithstanding the purported substantial
investment in Nigeria’s electricity sector, Nigerians continue to experience power outage,
which has hindered its economic growth.189 It is, therefore, important for the Nigerian
government to explore its vast renewable energy sources as a means of tackling its electricity
problem

9.2.2. An Appraisal of Nigeria Energy Policies

Prior to 2005, the defunct NEPA was saddled with the responsibility of electricity generation,
transmission and distribution.190 However, NEPA was unable to meet the electricity demands
of Nigerians.191 This prompted Nigeria’s government to introduce reforms in 2000 in an
attempt to salvage the unfortunate situation. In 2003, the government drafted NEP with the
overall theme of optimal utilization of the nation’s energy resources; fossil fuels and renewable
sources, for sustainable development with the active participation of the private sector.192 It is
worthy of note that NEP incorporated the government’s policy of utilization of solar energy in
Nigeria. The solar intensity in Nigeria is between 4kWh/M2/ per day and 6.5kWh/M2
depending on the location, and this far exceeds that of Germany by 1.6 times and is similar to
that of Spain; the two leading countries in the deployment of solar energy in the EU.193
However, NEP is not supported by any definite legal framework in Nigeria for its actualization.
It will be difficult for the Nigerian government to implement NEP in diversifying its energy

188
M. Oseni, “An Analysis of the Power Sector Performance in Nigeria” (2011) 15(9) Renewable and
Sustainable Energy Reviews, p. 4766.
189
ibid
190
Z. G. Usman and 3 others, “Transforming the Nigerian Power Sector for Sustainable Development” (2015)
87 Energy Policy, p. 432.
191
ibid
192
ibid
193
E. J. Bala, “Nigeria’s Power Sector Reform: What Next after Privatization” (Power and Electricity World
Africa Conference, Johannesburg, March 2014

164
mix to include solar photovoltaic194 without a legal framework, as the countries that are
excelling in this regard have statute-based policy frameworks. For example, Germany’s
renewable electricity prospects were enhanced pursuant to the enactment of the Electricity
Feed-in Law in 1991.195 It is further worthy of note that the strategy adopted for the
implementation of the renewable aspects of NEP is the Renewable Energy Master Plan, which
was drafted by the Energy Commission of Nigeria (ECN) in collaboration with the United
Nations Development Programme (UNDP) in 2005, which was subsequently reviewed in
2012.196 REMP was introduced with the aim of: 197developing and implementing strategies that
will achieve clean reliable energy supply and establish a mechanism to develop the sector based
on international best practices to showcase viability for private sector participation. The REMP
also emphasized the importance of integrating renewable energy into electricity grids and off-
grid electrical systems as well as the integration of solar power into Nigeria’s energy
mix.198The REMP contained specific targets to increase the total electricity supply from
renewable energy resources from 42% in 2005 to 60% in 2015 and 75% by 2025.199 The
REMP’s target for Nigeria’s overall electricity consumption is to attain up to 10% by 2025 of
the total electricity consumed in Nigeria from renewable energy sources.200 Notwithstanding
the support for generation of renewable electricity contained in REMP, the lack of a viable
legal framework is arguably responsible for its non-implementation. This is not unconnected
to the fact that policy implementation is a major challenge in Nigeria.201 Law is therefore
needed to make the implementation of REMP mandatory. Furthermore, Sambo, a former
Director General of ECN, opined that NEP and REMP should be enacted into law to ensure
their implementation by successive Nigerian governments.202 Arguably, Sambo’s view stems
from the repeated tendency of successive Nigerian governments of discontinuing the policies
of previous governments while introducing their own often dissimilar policies. This again

194
ibid
195
ibid
196
K. Ley and others, “The Nigerian Energy Sector: An Overview with a Special Emphasis on Renewable
Energy, Energy Efficiency and Rural Electrification”,
197
ibid
198
N. V. Emodi, Energy Policies for Sustainable Development Strategies: The Case of Nigeria (Springer,
2016), p. 58.
199
ibid
200
ibid
201
T. Makinde, “Problems of Policy Implementation in Developing Nations: The Nigerian Experience” (2005)
11 Journal of Social Science, pp. 63-69.
202
A. Sambo, “The Place of Renewable Energy in the Nigerian Energy Sector” (World Future Council
Workshop on Renewable Energy Policies, Addis Ababa, Ethiopia, October 2009), p. 18, available at:
https://www.africanpowerplatform.org/resources/reports/westafrica/nigeria/406-the-place-of-renewable-
energy-in-the-nigerian-energysector.html

165
demonstrates the importance of having in place a definite legal framework for the development
of renewable energy. This is what will give investors’ confidence to take advantage of the
financial incentives contained in REMP to wit pioneer status (tax exemption) and custom duty
waivers.203 It is also worthy of note that the ECN which was set up pursuant to the ECN Act of
1979204 with the mandate of carrying out “overall energy sector planning and policy
implementation, promoting the diversification of the energy resources through the development
and optimal utilization of all, including the introduction of new and alternative energy resources
like Solar, Wind, Biomass and Nuclear Energy” 205failed to equip ECN with the necessary legal
capacity to promote the generation of renewable electricity from renewable sources. This
approach again falls short of the European methodology as the EU through Directive
2009/28/EC created a common framework for the enhancement of renewable energy by
encouraging Member States to put in place measures specifically designed towards meeting
their targets by adopting necessary support schemes needed to actualize their targets.206 This is
obviously lacking in the ECN Act of 1979; limiting its utility as a renewable energy
development instrument

1. ………………law are rules and regulations that govern states in their relations.
(a)municipal (b)domestic (c)international (d) foreign
2. Which of the following is not a source of international law? (a) conventions (b)treaties
(c)international custom (d) domestic custom
3. …………….is the authority a state has over natural and juristic persons and property
within it (a)jurisdiction (b)power (c)sovereignty (d)none of the above
4. Energy is majorly classified into renewable and non-renewable energy (a) true (b)false

203
ibid
204
ECN Act No. 62 of 1979, as amended by Act No. 32 of 1988 and Act No. 19 of 1989
205
ECN, available at: http://energy.gov.ng/index.php?option=com_content&iview=article&id=79&It
emid=90; Section 5, ECN Act 1979
206
Directive 2009/28/EC, Art. 3

166
 1. (c) international
2. (d) domestic custom
3. (a) jurisdiction
4. (a) true

9.3 Admiralty Law

“Admiralty” is defined as “The system of jurisprudence that has grown out of the practice of
admiralty courts”207 Jurisdiction has been defined as” the power of the court to decide a matter
in controversy and presupposes the existence of a duly constituted court with control over the
subject matter and the parties”.208The jurisdiction of a court may be limited or unlimited. The
limitation may be either by the amount or value of the property in litigation or as to the type of
subject-matter it can handle. Courts are creatures of statutes, and it is the statute that created a
particular court that will clothe with jurisdiction. Admiralty Jurisdiction of a court is therefore
the authority which a court has to decide on any admiralty matter submitted before it for
adjudication. The only court that exercises admiralty jurisdiction in Nigeria is the Federal High
Court (Section 7 Federal High Court Act, LFN 2004.209

Admiralty law, otherwise known as maritime law deals with torts, crimes and contracts
between parties on navigable waters. It is a wide aspect of law in scope which is both domestic
and more of international laws. Admiralty law may be described as the body of laws which
governs matters relating to marine commerce and navigation, commercial transactions at
sea or relating to navigation, businesses relating to ships and shipping, matters concerning
seamen, sea and navigable waters transportation whether of persons or property.

9.3.1 Historical Background

The Admiralty jurisdiction in and around Nigerian territorial waters had for several years after
the establishment of a Supreme Court, and before 1891, a separate existence from the courts210.

207
(Black’s law dictionary, 8th Edition Page 50).
208
Black’s law dictionary, 6th edition, p.853
209
Maritime law, National Open University
210
See A. G. Karibi-Whyte, The Federal High Court Law and Practice (1976) 33.

167
The Supreme Court Act of 1876 did not vest any of the courts with admiralty jurisdiction.
Section 11 of the Supreme Court Act specifically excluded the exercise of such jurisdiction.
The provision of section 11 of the Act is hereby reproduced below:
“The Supreme Court shall be a superior court of record, and in addition to any other jurisdiction
conferred by this or any other ordinance of the colonial legislature, shall within the limit and
subject as in this ordinance mentioned, possess and exercise all the jurisdiction powers and
authorities, excepting the jurisdiction and powers of the High Court of Admiralty, which are
vested in or capable of being exercised by Her Majesty’s High Court of Justice in England, as
constituted by the Supreme court of Judicature Acts 1873 and 1875”.

The Court of Admiralty Act, 1890 which came into force on 25th July 1890 was passed by the
British Imperial Parliament. By virtue of section 2 (2) of the Act, the jurisdiction of colonial
Courts of Admiralty was made to “be over the like places, places, persons, matters and things
as the admiralty jurisdiction of the high court in England and shall have the same regard as that
court in International law and the country of nations”. Section 3 conferred admiralty
jurisdiction on every court of law having unlimited original jurisdiction in civil cases in the
colonies.211 By virtue of the section 3, the Supreme Court which hitherto lacked jurisdiction
became vested with jurisdiction. Section 12 of Court of Admiralty Act 1890 empowered the
Queen-in –council to direct that the provision of the colonial Courts of Admiralty Act shall
apply to any court established by the Queen for the exercise of jurisdiction in any colony. In
exercising this power, the Nigerian protectorate Admiralty Jurisdiction Order of 1928 was
made. This order gave the Supreme Court of the colony of Lagos (i.e High Court) jurisdiction
over admiralty matters, and by 1933, the jurisdiction of the Supreme Court of the colony of
Lagos had gradually extended throughout the whole protectorate. (Supreme Court
(Amendment) Ordinance No. 43 of 1933) It should be noted however that the Supreme Court
for the colony of Lagos had existed since 1863 but exercise no jurisdiction over admiralty
matters until 1928.212 The Supreme Court (Amendment) Ordinance No. 43 of 1933 was
repealed in 1943 by the Supreme Court Act 1943, and a new Supreme Court (i.e High Court)
was established for the colony and protectorate of Nigeria. The admiralty jurisdiction conferred
on the court by the Nigerian protectorate Admiralty Jurisdiction Order of 1928, was retained
in section 24 of the Supreme Court Act of 1943 England admiralty law.213 In 1954, when

211
A.A Olawoyin, ‘Admiralty Jurisdiction’ in E.O. Akanki (eds), Commercial Law in Nigeria(2010), 799
212
Maritime law, National Open University
213
ibid

168
Nigeria adopted a federal system of government, the Federal Supreme Court was created, as
well as High Court for Lagos and each of the three regions of the federation. Under this new
federal system, none of the regional High courts, the High Court of Lagos, or the Federal
Supreme Court was vested with admiralty jurisdiction. In 1956, the original admiralty
Jurisdiction of the former Supreme Court (i.e High Court) became vested in the Federal
Supreme Court. But upon attainment of independence in 1960, a new Federal Supreme Court
was created by virtue of Federal Supreme Court Act No. 12 of 1960.214 Section 17 of this act
conferred admiralty jurisdiction upon the new Court in the same manner as the Acts of 1943
and 1955. This remained the position until 1963 when the original jurisdiction of the Federal
Supreme Court in admiralty cases was repealed by the Admiralty Jurisdiction Act No.34 of
1962. This Act made it possible at the same time for the Lagos and Regional High Courts to
exercise original jurisdiction in admiralty cases. In 1973, the Federal Revenue Court (now the
Federal High Court) was established by virtue of the Federal Revenue Court Act 1973. Section
7(1)(d) vested with the court with power to exercise admiralty jurisdiction in the country.
Between 1973 and 1983, there was controversy as to whether high courts can also exercise
jurisdiction along with the Federal Revenue Court on admiralty matters. This is because section
230 of the Constitution of the Federal Republic of Nigeria 1979 preserved the jurisdiction of
the Federal High Court in respect of admiralty matters, while section 236 of the same
constitution also gave the State High Court unlimited jurisdiction to hear and determine any
civil proceedings in which the existence or extent of a legal right, power, duty, liability,
privilege, obligation or claim is in issue. This struggle for jurisdiction was witnessed in the
decisions of Savannah Bank of Nigeria Limited v Pan Atlantic Shipping & Transport Agencies
Limited (1987) 1 NWLR Pt 49, Page 212, Jamal Steel Structures Co. Ltd v African Continental
bank Ltd (1973) 1 All NLR (Part 2) 208, American International Insurance Co. v Ceekay
Traders limited (2001) FWLR (Part 47) 1163, Bronik Motors Ltd v Wema Bank Ltd (1983) 6
SC 158. The struggle between the Federal High Court and the State High Courts on jurisdiction
in and over admiralty matters was put to rest following the enactment of Federal High Court
(Amendment) Act No. 60 of 1991 and the Constitution (Suspension and Modification ) Act
No. 107 of 1993. Section 2 of the Act amended Section 7 of the Federal High Act of 1973 and
substituted the list of matters upon which the Federal High Court can exercise jurisdiction to
the exclusion of other courts. Olawoyin explained that the second schedule to the Act No. 107
titled “Modifications of Provisions of the Constitution of the Federal Republic of Nigeria 1979

214
ibid

169
not suspended by section 1”, introduced a new section 230 of the then 1979 Constitution which
automatically vested the Federal High Court with the admiralty jurisdiction to the exclusion of
any other court. Furthermore, the Admiralty Jurisdiction Decree No. 59 of 1991 (now
Admiralty Jurisdiction Act, Cap A5, LFN 2004) was promulgated, and that repealed the
Admiralty Jurisdiction Decree of 1962 under which the state high courts were given jurisdiction
over admiralty matters thus finally putting to rest the controversy on jurisdiction in admiralty
matters. As such, the only court capable of exercising admiralty jurisdiction in Nigeria today
is now the Federal High Court.215

9.3.2 The Scope of Jurisdiction of the Federal High Court under the Admiralty Jurisdiction
Act, CAP A5, LFN 2004
Section 1 of the Act states all the causes of action over which the Federal High Court can
exercise jurisdiction. By virtue of section 1(i)(b) of the Act, the Federal High Court has this
same admiralty jurisdiction that existed in any court in Nigeria prior to the commencement of
the Act. Although section 1(i)(b) of the Act did not expressly divest those other courts of their
jurisdiction in admiralty matters, but Section 19 of the Act expressly vests exclusive
jurisdiction in admiralty causes or matters, whether civil or criminal in Federal High Court.
Section 3 of the provides that the admiralty jurisdiction of the Federal High Court shall apply
to all ships irrespective of the places of domicile or residence of the owners, and to all maritime
claims wherever arising. While section 4 provides that any reference to a claim in respect of an
aircraft includes a claim that can be made under any of the Conventions in force to which
Nigeria is a party.216

9.3.3 Type of actions in maritime claims

Two types of actions are recognized under the Admiralty Jurisdiction Act 2004, and they are
action in rem and action in personam.217 An action in rem is an action against a res or property
which is usually the ship itself. It may in certain circumstances be commenced against a freight
or cargo or proceeds of sale.218 An action in personam is a form of proceeding in maritime
claims brought against persons who are usually the owners of a ship. An action in personam as
distinct from an action in rem is one directed at the person, usually the owners, charterers or

215
ibid
216
ibid
217
ibid
218
ibid

170
operators of a ship. One important distinction between an action in rem and personam is that
in the case of the latter, they are enforceable in person against the assets of the defendant sued
regardless of the nature of the claim.219 But in the case of the former, a judgment in the
proceedings cannot impose any personal liability on a shipowner who has not appeared to
defend the action, or attach any of his other ships.220

9.3.4 Maritime Lien

A maritime lien is a valuable and effective method of enabling the injured party to make the
vessel herself available as security for his claim.221 It is a claim against a ship or other maritime
property, which can be made effective by the seizure of the property in question.222 The
category of maritime lien was first endorsed in The Bold Buccleugh Harmer v. Bell.223

Maritime lien is inchoate in nature and is devoid of any legal consequence unless and until it
is carried into effect by legal process, by an action in rem224. A claimant who wants to succeed
in his claim must bring an action in rem against the ship. However, an action in rem does not
lie against Government ship or property, and where such has been commenced on the
reasonable belief that the ship was not a Government ship, the court may order that the
proceeding be treated as though it was an action in personam.225The following inventory claims
are classified under section 66 of Merchant Shipping Act No. 27 of 2007 as maritime lien:
(i) wages and other sums due to the master, officers and other members of the ship’s
complement in respect of their employment on the ship;
(ii) disbursements of the master on account of the ship;
(iii) claims in respect of loss of life or personal injury occurring whether on land or on
water in direct connection with the operation of the ship;
(iv) claims for salvage, wreck removal and contribution in general average;
(v) claims for ports, canal and other waterways, dues and pilotage dues. Section 5(3) of
the Admiralty Jurisdiction Act 2004 also lists the following claims as maritime lien:
(i) claims relating to salvage including life, cargo or wreck found on land;
(ii) claims for damages caused by a ship;

219
ibid
220
ibid
221
A.A Olawoyin, ‘Admiralty Jurisdiction’ in E.O. Akanki (eds), Commercial Law in Nigeria(2010), 827
222
ibid
223
13 ER 884
224
Maritime law, National Open University
225
(See section 24(2) of Admiralty Jurisdiction Act 2004).

171
 (iv) claims by the master or crew member of a ship for wages; and
(v) claims by the master in respect of disbursement on account of a ship.

Claims under admiralty law include maritime claims. According to Bonavista Shipping
Corporation v. Akrontrade & Transportate De Venezuela C. A & ORS (2017) LPELR-
44023(CA) "… a maritime claim is a reference to "a claim arising out of an agreement relating
to the carriage of goods or persons by a ship or to the use of hire of a ship whether by charter
party or otherwise... The word claim used in the provisions of Section 2(3)(f) of the Admiralty
Jurisdiction Act is clearly not limited in its scope; rather it is all encompassing and therefore
wide enough to include claims in the nature of those claimed by the Appellant herein. See:
NOMSAL MARKETING AND SUPPLIES LTD & ANOR v. JOASY PEN ENTERPRISES
(2005) LPELR - 5981 (CA)." Per ABUBAKAR, J.C.A. (Pp. 16-17, Paras. D-B).

Similarly, the Court in Iroegbu v. MV Calabar Carrier (2008) 5 NWLR (Pt. 1079) 147 at Pp.
170-171, paras. H-A held that "By virtue of section 2(3)(f) of the Admiralty Jurisdiction Act,
1991, reference to a general maritime claim, is a reference to a claim out of an agreement
relating to the carriage of goods or persons by a ship or to the use or hire of a ship, whether by
charter-party or otherwise." Per Mukhtar, JCA.

Further the case of The M. V. "Med Queen" v. Erinfolami (2008) 3 NWLR (Pt. 1074) 314 at P.
326. para. C stated that "By virtue of section 2(3)(k) of the Admiralty Jurisdiction Act 1991, a
general maritime claim is a claim in respect of goods, materials or services supplied or to be
supplied to a ship for its operation and maintenance. Such claim includes stevedoring and
lighterage services." Per Galinje, J.C.A.

According to A.W. (Nig.) Ltd V. Super Maritime (Nig.) Ltd (2005) 6 NWLR (Pt. 922) 536 at
587 (CA) "In Nigeria as well as in England, the jurisdiction of the court which entertains and
determines admiralty matters is statutory. By virtue of section 19 of the Admiralty Jurisdiction
Act, 1991, the Federal High Court has exclusive jurisdiction in admiralty causes or matters
whether civil or criminal." Per ADEREMI, J.C.A.

It must however be noted that not all claims with some traces of admiralty, maritimeor shipping
would form admiralty or maritime claims. The court inIroegbu v. MV Calabar Carrier (2008)

172
5 NWLR (Pt. 1079) 147 at P. 170, para. D held that "It is not every transaction that involves a
ship that can found an action under the Admiralty Jurisdiction Act." Per Galinje, J.C.A.

The Court in Chevron Nigeria Limited v. Lonestar Drilling Nigeria Limited (2007) LPELR-
842(SC) also held: "The fact that a transaction between two parties in Nigeria involves the
conveyance of the subject of the transaction by sea from another country to Nigeria does not
give that transaction the character of an admiralty action. In the instant case, the Court of
Appeal was right when it held that the respondent's suit was not an admiralty matter within the
exclusive jurisdiction of the Federal High Court, merely because of the fact that the contract
involved the conveyance of the rig purchased by the respondent from India to Nigeria by sea.
It was a claim in contract over which the High Court had jurisdiction." Per Mohammed, J.S.C.

Limitation of admiralty claim is also stated in Texaco Overseas (Nig) Petroleum Company
Unlimited v. Pedmar Nigeria Ltd. (2002) LPELR-3145(SC) thus: "… the Admiralty
Jurisdiction of Federal High Court cannot be invoked once the goods carried by a ship have
been discharged in the harbour or delivered to the point of destination of the cargo. In any
event, for a claim in admiralty to arise, the cargo or goods must still be in the vessel". Per
EJIWUNMI, J.S.C. (P.13, paras. A-B).

9.4 Environmental Law

Another aspect of substantive law that developed out of a combination of other substantive
laws is environmental law. It can be said to have amplified some aspects of law of torts,
especially nuisance, rule in Ryland v Fletcher, trespass, etc. Because it relates to all that
happens in environment which may not be limited in geographical scope, environmental law is
also international. It is therefore both subject of municipal law and more importantly now
international law. The spread of the COVID_19 pandemic for instance is an example of
environmental global nature. But more pointedly, the impact of human activities on climate
change is most relevant demonstration of international law aspect of environmental law.

The 1999 Constitution of the Federal Republic of Nigeria by section 20 provides that “”The
State shall protect and improve the environment and safeguard the water, air and land, forest
and wild life of Nigeria.

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According to The Oxford Handbook of Comparative Environmental Law by Emma Lees and
Jorge E. Viñuales (2009) “The expression ‘environmental law’ generally refers to a set of legal
arrangements deliberately—and sometimes reactively—used or developed to address specific
or general problems arising from the impact of human activity on the natural and built
environment. It is, as such, a simple expression referring to a complex set of phenomena. It is
not the only expression that has been used in this regard. Leaving aside the terminology
employed in languages other than English, several expressions such as ‘nature protection law’,
‘wildlife law’, ‘natural resources law’, among others, can be used to refer to some of the issues
covered by the expression ‘environmental law’. Even the latter expression seems too narrow,
as some of the legal arrangements that were historically used to address the impact of human
activity on the natural and built environment (e.g. the private law tort of nuisance) as well as
some of those that are still used for this purpose today ….”

Jonas Ebbesson and Phoebe Okowa(2009) in Environmental Law and Justice in Context stated
that "Environmental laws and policies are predominantly goal-oriented. Standards, principles
and procedures for the protection of the environment are often instrumental to achieve, say, the
conservation of fragile ecosystems and endangered species, the preservation of fresh water and
other natural resources, the restoration of contaminated soils as well as the stratospheric ozone
layer, and the protection of human health. This goal-oriented feature is evident in national as
well as international law. It is apparent also when legal approaches to managing environmental
problems are compared with economic or market-based instruments, such as emission trading,
environmental taxes and voluntary agreements and codes of conduct. National statutes and
international treaties, standards, instruments and procedures are assessed with these underlying
objectives in mind, and mainly analysed in terms of effectiveness and achievability of the set
objectives. Even sustainable development, as an overarching societal objective with obvious
environmental connotations, reflects this goal-oriented conception of environmental law and
policy."
Issues discussed under this aspect of law include among others:
• Protection of human environment
• Control of pollution
• Preservation of natural areas and resources
• Control of climate change
• Preservation of the ecosystem
• Preservation of animal and plant species from going extinct

174
 1. Admiralty Law is otherwise known as Maritime Law. (a) true (b) false
2. The two types of actions recognized under the Admiralty Jurisdiction Act are actions
in rem and in personam (a) false (b) true
3. A maritime ………………… enables an injured party to make the vessel available as
security for his claim. (a)law (b)equity (c)lien (d) mortgage
4. Which of the following issues fall under the scope of Environmental Law? (a)pollution
(b)climate change (c)preservation of the ecosystem (d) all of the above

1. (a) true
2. (b) true
3. (c) lien
4. (d) all of the above

9.5 Health Law and Policy

This is also a relatively new specialization in law but very relevant in the changing world.
Trying to describe Health Law and Policy Wilensky and Teitelbaum, in their book titled
Essentials of Health Policy and Law, wrote that “Health policies and laws are an inescapable
and critical component of our everyday lives. The accessibility, cost, and quality of health care;
the country’s preparedness for natural and human-caused disasters; the safety of the food,
water, and medications we consume; the right to make individual decisions about one’s own
health and well-being; and scores of other important issues are at the heart of health policy and
law, and in turn at the heart of individual and community health and well-being. Health policies
and laws have a strong and lasting effect on the quality of our lives as individuals and on our
safety and health as a nation.”

Section 17(3) provides that "The State shall direct its policy towards ensuring that- ... (c) the
health, safety and welfare of all persons in employment are safeguarded and
not endangered or abused; (d) there are adequate medical and health facilities for all persons."
So, it is the duty of the state to provide adequate health policies and facilities for the well-being

175
of the citizens. As globalization increases the issue of provision of health policies and facilities
becomes more of international law.

Summary of Study Session 9

In the Study Session attempts have been made to discuss international law and its sources. The
concept of energy law, admiralty law, environmental law and health policy and law were also
discussed in this study session. The scope of the jurisdiction of the federal high courts as it
relates to admiralty matters was also discussed.

Self-Assessment Questions
1. Discuss briefly the sources of international law
2. What do you understand by energy law?
3. What classes of claims fall within the Admiralty Jurisdiction of The Federal High Court.
4. Explain the basic concerns of environmental law.
5. Briefly state the focus of health policy and law.

References
A.O. Akanki (ed.) 2010, Commercial Law in Nigeria

176
 STUDY SESSION 10

PUBLIC/ECONOMIC REGULATORY

Introduction
This session focusses on the roles of specially recognized public administration
bodies/agencies by the Constitution. The session discusses their functions and explains their
duties and procedures

Learning Outcomes for Study Session 10

1. At the end of this Study Session, the student should be able to explain the roles of
specially recognized public administration bodies/agencies by the Constitution
2. Students should be able to identify the functions of these agencies
3. Students should be able explain their duties and procedures.

10.1 Code of Conduct Bureau

The Code of Conduct Bureau was established as an executive body by section 153 of the 1999
Constitution of the Federal Republic of Nigeria. The body exercises disciplinary control over
persons in the public service. Its basic function is to ensure standard ethical, moral,
transparency and accountability by officers in the public service including federal, state and
local government levels of governance.

Part 1, Third Schedule of the 1999 Constitution provides as follows on the Code of Conduct
Bureau:
1. The Code of Conduct Bureau shall comprise the following members:
(a) a Chairman; and
(b) nine other members, each of whom, at the time of appointment, shall not be less
than fifty years of age and subject to the provisions of section 157 of the Constitution
shall vacate his office on attaining the age of seventy years.

2. The Bureau shall establish such offices in each state of the Federation as it may
require for the discharge of its functions under the Constitution.

177
 3. The Bureau shall have power to:
(a) receive declarations by public officers made under paragraph 12 of Part I of the
Fifth Schedule to the Constitution all assets they have at the beginning of their term
of office and at the end of the term;
(b) examine the declarations in accordance with the requirements of the Code of
Conduct or any law;
(c) retain custody of such declarations and make them available for inspection by any
citizen of Nigeria on such terms and conditions as the National Assembly may
prescribe;
(d) ensure compliance with and, where appropriate, enforce the provisions of the Code
of Conduct of any law relating thereto;
(e) receive complaints about non-compliance with or breach of the provisions of the
Code of Conduct or any law in relation thereto, investigate the complaint and,
where appropriate, refer such matters to the Code of Conduct Tribunal;
(f) appoint, promote, dismiss and exercise disciplinary control over the staff of the
Codes of Conduct Bureau in accordance with the provisions of an Act of the
National Assembly enacted in that behalf; and
(g) carry out such other functions as may be conferred upon it by the National
Assembly.

4. The terms and conditions of service of the staff of the Code of Conduct Bureau shall
be the same as those provided for public officers in the civil service of the Federation.

According to Saraki v. FRN (2016) LPELR-40013(SC) "Paragraph 15 (1) of the Fifth Schedule
of the Constitution provides for the establishment of one of such adjudicatory bodies.
Undoubtedly, the constitutional provisions (enshrined in the Fifth Schedule), dealing with the
code of conduct for public officers, were primarily designed to enthrone probity in the public
lives of public officers (that is, officers listed in Part II of the Fifth Schedule) and, a fortiori, to
promote transparency and accountability in governance. The Code of Conduct Bureau (CCB,
for short) and the CCT are the bodies responsible for effectuating the said code of conduct
provisions. In particular, the latter [CCT] is the adjudicative arm in the entire architecture of
the accountability provisions of the Third and Fifth Schedules of the Constitution. Its powers
are outlined Paragraph 18 of the Fifth Schedule." Per NWEZE, J.S.C. (Pp. 127-128, Paras. F-
D)
178
10.2 Public Service Commission
The Constitution provides for both federal (section 169) and state (section 197) service
commissions to oversee the administrations of the federal civil service and the state civil
service. The Commissions exercise the powers of making appointments/removals and exercise
disciplinary control over civil servant at the federal and state civil service respectively. In
exercising its power to make appointments or to exercise disciplinary control over persons the
bodies shall not be subject to the direction and control of any other authority or person.

In Igbe v. Gov. of Bendel State & Anor. (1983) LPELR-1443(SC) the Supreme Court held
regarding the difference between public and civil service commission thus: "The difference in
nomenclature between Public Service Commission under the 1963 Constitution (see S.146
thereof) and State Civil Service-Commission under S.178 of the 1979 Constitution makes no
difference to the survival of the institution of the Public Service Commission on the coming
into force of the 1979 Constitution, the essence of the difference in the two bodies lying in the
reduction of the ambit of the duties which the Public Service Commission was performing
under the 1963 Constitution as against the duties now being performed by the State Civil
Service Commission, but barring that reduction they are the same. In any case the reduced
function cannot defeat the intention of the Constitution that the State Public Service
Commission in its new name of the State Civil Service Commission should survive the
Constitutional transition." Per Aniagolu, J.S.C (Pp. 34-35, Paras. D-A).

The Court in ABUBAKAR & ANOR v. THE EXECUTIVE GOVERNOR, GOMBE STATE
& ORS (2002) LPELR-11247(CA) further held concerning state civil service commission that
"Section 197(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 established for
each State of the Federation, the State Civil Service Commission. Section 198 of the said
Constitution empowers the State Governor, in this case, the 1st respondent to appoint the
chairman and members of the commission subject to confirmation by a resolution of the House
of Assembly. By virtue of section 201 of the Constitution, the chairman and members of the
Commission having been so appointed as stipulated in section 198 of the Constitution shall
only be removed from office by the Governor acting on an address supported by two-thirds
majority of the House of Assembly of the State praying that he be so removed for inability to
discharge the functions of the office or for misconduct." Per OBADINA, J.C.A. (Pp. 42-43,
paras. D-A). It is only the President that can remove the Chairman of the Federal Service
Commission being his appointee.
179
 1. The Code of Conduct Bureau was established to exercise …………control over public
servants (a)compensatory (b)disciplinary (c)criminal (d)civil
2. Public Service Commission was established to oversee the …………of the federal and
state civil service (a)establishment (b)winding-up (c)administration (d)none of the
above
3. It is only the President that can remove the Chairman of the Federal Service
Commission (a)true (b)false
4. One of the functions of the Code of Conduct Bureau is to ensure compliance with the
code of conduct (a)false (b)true

1. (b) disciplinary
2. (c) administration
3. (a) true
4. (b) true

10.3 Independent Corrupt Practices Commission

The Independence and Corrupt Practices Commission was established by an Act of the
National Assembly. The Court in Ayeni v. FRN & ANOR (2017) LPELR-43406(CA) stated its
functions as follows: "Sections 6 (a) and 27 of the ICPC Act, respectively, provide as follows:
"6(a) "It shall be the duty of the Commission: (a) Where reasonable grounds exist for suspecting
that any person has conspired to commit or has attempted to commit or has committed an
offence under this Act or any other law prohibiting corruption; to receive and investigate any
report of the conspiracy to commit, attempt to commit, or the commission of such offence and
in appropriate cases to prosecute the offenders." 27(1) Every report relating to the commission
of an offence under this Act may be made orally or in writing to an officer of the Commission,
and if made orally shall be reduced in to writing and read over to the person making the report,
and every such report shall be signed or thumb printed by the person making it, and where the
person making the report is an illiterate the Officer obtaining the report shall endorse that fact
on the report together with a statement to the effect that it was read over and interpreted to the

180
maker. (2) Every report whether in writing or reduced in to writing, shall be entered in a book
kept at the office of the Commission and there shall be appended to such entry the date and
hour such report was made. (3) Where an officer of the Commission has reason to suspect the
commission of an offence under Act following a report made under Subsection (1) or
information otherwise received by him, he shall cause investigation to be made and for such
purpose may exercise all the powers of investigation provided for under this Act or any other
law. (4) A report made under Sub-section (1) of this Section shall not be disclosed by any
person to any person other than officers of the Commission or the Attorney-General until the
accused person has been arrested or charged to Court for an offence under this Act or any other
written law arising from such report. (5) Any document certified by any Officer of the
Commission under Sub-section (2) in respect of a report under Sub-section (1) shall be
admissible as evidence of the contents in the original and of the time, place and manner to
which the report was recorded." The words in Sections 6(a) and 27 of the ICPC Act are plain,
clear and unambiguous and upon their literal interpretation, as required by law, they provide
that the Independent Corrupt Practices Commission ("the Commission") has a duty to receive
and investigate any report on conspiracy to commit, attempt to commit or commission of any
crime under the ICPC Act or any other Law and to prosecute offenders, in appropriate cases.
The provisions also provide that any such report may be written or oral which shall be reduced
into writing, and that the report shall be duly authenticated by the person who has made the
report. There is, however, nothing in the said provisions of the ICPC Act which requires that
the person who has made any report to the Commission must be called to testify as a witness,
if the alleged offender is eventually prosecuted in Court." Per ADUMEIN, J.C.A. (Pp. 19-22,
Paras. E-B).

According to Shidali v. F.R.N. (2008) ALL FWLR (Pt.421) 899 at P. 914, paras B - F "By
virtue of section 174(1) and 286(1)(b) of the 1999 Constitution, the Attorney-General of the
Federation or any person authorised by the Independent Corrupt Practices Commission
(I.C.P.C.) can lawfully initiate or authorise the initiation of criminal proceedings in any court
other than a court martial in any State of the Federation." Per. Muhammad JCA.

By virtue of the decision in Nwankwoala v. FRN (2018) LPELR-43891(SC),to succeed in

proving offence of corruption“… the prosecution [ICPC] must prove the following beyond
reasonable doubt.

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 (a) That the accused person is a public officer.
(b) That the accused person received or obtains any property or benefit of any kinds for
himself or for any other person for anything already done or omitted to be done or for
any favour or disfavor already shown to any person by himself in the discharge of his
official duties, or in relation to any matter connected with the functions, affairs or
business of a government department or corporate body or other organization or
institution in which he is serving as an official.
(c) That he asked for the benefit in the course of his official duties.
(d) That the accused person failed to report the offer of gratification to any officer of
the Independent Corrupt Practices Commission (ICPC)." Per RHODES-VIVOUR,
J.S.C. (Pp. 14-15, Paras. C-A).

10.4 Economic and Financial Crime Commission

As the name implies the Economic and Financial Crime Commission (EFCC) was established
also by an Act of the National Assembly to prevent and control economic and financial
activities and insulate such activities from being abused by fraudulent persons in different
ways.

The Court in KALU v. FEDERAL REPUBLIC OF NIGERIA & ORS (2012) LPELR-
9287(CA) enunciated the duties of the EFCC thus: "… the Economic and Financial Crimes
Commission (Establishment) Act, which establishes the EFCC, the 1st Respondent, has
specifically in Sections 6 and 7 thereof vested the EFCC with investigatory and prosecutorial
powers. The EFCC derives its competence to investigate and prosecute the Appellants for
money laundering offences, under the Money Laundering (Prohibition) Act from Sections 6
and 7 of the EFCC Act... Let me repeat that Section 15 (5) of the 1999 Constitution obligates
the Federal Republic of Nigeria, as a State, "to abolish corrupt practices and abuse of power".
The enactments of the EFCC Act and the Money Laundering (Prohibition) Act are all in a bid
to discharge not only this constitutional obligation, but also the Country's International
obligation in the global war against corruption, terrorism, drugs and other cross-border crimes.
The Appellants, in view of the pronouncement of Lokulo-Sodipe JCA in E.O. WIKE v. FRN
(NO CA/A/85C/2009 of 17th July, 2009), cannot possibly maintain their argument that since
the proper complainants were not before the lower court and that in the absence of proper
complainants the lower court lacks jurisdiction to try them... The provisions of Section [6(1)]
of the EFCC Act, Cap E1 LFN 2004, have been set out verbatim in both the Appellant's and
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Respondent's Briefs of Argument. I have painstakingly perused the provisions of the said
section and guided by the principles and canons of interpretation, as stated in the cases cited
above, I am of the considered view that the EFCC indeed does not need to receive any
complaint or request, formal or informal, from a particular organization or victim, before it can
carry out investigation in respect of the commission of an economic crime in relation to that
organization or victim. The provision of Section 5(1) (e) of the EFCC Act, provides for the
"adoption of measures to eradicate the commission of economic and financial crimes". Now,
if the commission can on its own volition embark on the "unsolicited" investigation of the
commission of economic and financial crimes pursuant to information it digs up by itself or
from faceless persons writing petitions, will this not serve towards the eradication of the
commission of economic crimes, when the generality of the people know that they can at any
time be the object of investigation by the EFCC even without any identifiable person lodging
a formal complaint against them with the said EFCC? The clear answer in my considered view
is that unsolicited investigation by the EFCC is within its powers, having regard to the literal
reading of Section 6(1)(e) of the EFCC Act... In the light of all that I have stated above, I do
not see anything wrong in the reasoning and conclusion of the lower court - to wit: ..." the
Rivers State Government itself need not complain of missing funds before the EFCC can cause
investigation and prosecution in relation to the affairs of the Rivers State Government and I so
hold." I have found the lower court to be eminently correct. The point has been made by, and I
agree entirely with, 1st Respondent's counsel that the combined reading of Sections 6(m) and
46 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 clearly
shows that the EFCC has powers to investigate and prosecute for all crimes connected with or
related to economic and financial crimes, which include various forms of fraud, money
laundering, corrupt practices, and drug related offences. I also agree that the definition of
economic and financial crimes is wide enough to accommodate the offences the Appellants
have been charged with at the lower court." Per EKO, J.C.A. (Pp. 70-75, paras. C-E).

The Court in OLAGUNJU v. EFCC (2019) LPELR-48461(CA) required the EFCC to follow
due process in the recovery fraudulent proceeds thus: "From the totality of the evidence before
the lower Court, it is not in dispute that the Respondent did not obtain a Court order before
giving instruction to Heritage bank to freeze the Appellant's accounts maintained with her. The
question now is whether the Respondent acted within its powers under the law when it gave
the instruction to Heritage Bank to freeze the Appellant's accounts, which instructions were
carried out. The Respondent's case is that it received a petition from AMCON wherein criminal
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offences were alleged against the Appellant and investigation revealed that the Appellant's
accounts with Heritage bank contained monies which are proceeds of crime. Section 38 (1) of
the EFCC Act gives powers to the Respondent to receive information without hindrance.
Section 34 of the same Act which empowers the Respondent to give instruction to freeze
Accounts provides thus: "Notwithstanding anything contained in any other enactment or law,
the Chairman of the Commission or any officer authorized by him may, if satisfied that money
in the account of a person is made through the commission of an offence under this Act or any
enactments specified under Section 7 (2) (a) to (f) of this Act apply to the Court ex parte for
power to issue or instruct a bank manager or such other appropriate regulatory authority to
issue an order as specified in form B of the schedule to this Act, addressed to the manager of
the bank or any person in control of the financial institution where the account is or believed
by him to be or the head office of the bank other financial institution or designated non-
financial institution to freeze the account." The law is settled that when it comes to the
interpretation of the provision of a statute, such statute must be construed literally and the words
therein given their ordinary meaning. See ABACHA & ORS VS. FAWEHINMI (2000) 6
NWLR (pt. 660) 228, CSS BOOKSHOPS LTD. VS. REGISTERED TRUSTEES OF
MUSLIM COMMUNITY RIVERS STATE & ORS (2006) 11 NWLR (pt. 992) 530; UDE VS.
NWARA & ANOR (1993) 2 NWLR (pt. 278) 638; OKOTIE - EBOH VS. MANAGER & ORS
(2004) 18 NWLR (pt. 905) 242. In the case of PROVOST LAGOS STATE COLLEGE OF
EDUCATION & ORS VS. EDUN & ORS (2004) 6 NWLR (pt. 870) 476 @ 509 paras D - F,
TOBI JSC held thus: "What is the effect of non-compliance with the law? It is settled law that
expropriatory statutes which encroach on a person's proprietary rights must be construed
fortissimo contra preferates, that is strictly against the acquiring authority but sympathetically
in favour of the citizen whose proprietary rights are being deprived. Consequently, as against
the acquiring authority, there must be a strict adherence to the formalities prescribed for the
acquisition. See OBIKOYA VS. GOVERNOR OF LAGOS STATE (1987) 1 NWLR (pt. 50)
385; LSDPC VS. FOREIGN FINANCE CORPORATION (1987) 1 NWLR (pt. 50) 413,
ATTORNEY GENERAL, BENDEL STATE VS. P.L.A. AIDEYAN (1984) 4 NWLR (pt. 118)
646." The provision of Section 34 (1) of the Economic and Financial Crimes Commission Act,
encroaches on a person's proprietary right to monies in his or her bank account. It must
therefore be construed strictly using the literal approach. It is trite law that when a legislation
prescribes a procedure or method for doing an act, it is only such procedure or method that is
permissible and no other. See OYAMA VS. AGIBE (2016) ALL FWLR (pt. 840) 1274 at 1292
paras E-F. It is also the law that where a statute provides unambiguously for an act to be done
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in a particular manner, failure to perform that act in the prescribed manner amounts to
noncompliance and its effect cannot be waived. See NIGER-CARE DEV. CO. LTD. VS.
ASWB (2008) ALL FWLR (pt. 422) 1052 and IKPE VS. ELIJAH 2011 LPELR 4 516 CA. My
firm view is that the only interpretation that can be extended to the provision of Section 34 (1)
of the EFCC Act is that when the Respondent is investigating a Crime, its Chairman may decide
whether there is the need to freeze the account involved. This is clearly the discretion of the
Chairman. When he however decides that there is the need to freeze such account, he must
obtain a Court order before doing so. A Court Order is therefore a condition precedent for the
exercise of the Respondent's power to freeze an account pursuant to the provisions of Section
34 (1) of the EFCC Act. The Respondent must obtain a Court Order before taking such a step.
Anything to the contrary is a flagrant violation of the law and right of the owner of the frozen
bank account. The Courts have consistently frowned at such violations. In the very recent case
of GT BANK v. ADEDAMOLA (2019) 5 NWLR (pt. 1664) pg. 30 at 43, my learned brother
of this Court Abubakar JCA held as follows: "Before freezing customer's account or placing
any form of restrain on any bank account, the bank must be satisfied that there is an order of
Court. By the provisions of Section 34 (1) of the Economic and Financial Crimes Commission
Act 2004, the Economic and Financial Crimes Commission has no power to give direct
instructions to banks to freeze the account of a customer without an order of the Court. So
doing constitutes a flagrant disregard and violation of the rights of a customer. I must add that
the judiciary has the onerous duty of preserving and protecting the rule of law. The principles
of rule of law are that both the governor and the governed are subject to rule of law; no one is
above the law. Whenever there is brazen violation of the rights of a citizen, the Courts in the
discharge of their responsibility to the society, must rise the occasion, speak, frown upon and
condemn arrogant display of powers by an arm of government. It is in the interest of both
government and citizens that laws are respected, as respect for the rule of law promotes order,
peace and decency in all societies, and we are not an exception. Our financial institutions must
not be complacent, reticent and toothless in the face of brazen and reckless violence to the
rights of their customers. Whenever there is a specific provision regulating the procedure of
doing a particular act, that procedure must be followed." The lower Court was clearly in error
when it held at page 185 of the Record that the freezing of the Appellant's account is in tandem
with Section 34 (1) of the EFCC Act and Section 44 (1) (K) of the Constitution of the Federal
Republic of Nigeria 1999 as amended and I so hold. Section 44 (1) (k) of the Constitution
provides thus: "(1) No moveable property or any interest in an unmovable properly shall be
taken possession of compulsorily and no right over or interest in any such property shall be
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acquired compulsorily on any part of Nigeria except in the manner and for the purposes
prescribed by law that, among other things: (a) Requiring the prompt payment of compensation
therefore and (b) Gives to any person claiming such compensation a right of access for the
determination of his interest in the property and the amount of compensation to a Court of law
or tribunal or body having jurisdiction in that part of Nigeria. (2) Nothing is Subsection (1) of
this Section shall be construed as affecting any general law- (k) relating to the temporary taking
of possession of property for the purpose of any examination, investigation or enquiry." The
above provision does not in any way give the Respondent any discretion to freeze the
Appellant's accounts without a Court order. The provision guards against the compulsory
acquisition of property, moveable or unmovable without compliance with extent laws. An
example of such laws is Section 34 of the EFCC Act. In other words, a citizen shall not be
deprived of his property without due process of law. It follows therefore that the Respondent
cannot lawfully take possession of the Appellant's property either temporarily or otherwise for
the purpose of investigation without a Court order and I so hold. The Respondent by its action,
deprived the Appellant access to her money on the two accounts maintained at Heritage Bank
and by so doing breached the provisions of Section 44 (1) (K) of the Constitution of the Federal
Republic of Nigeria as amended and Section 34 (1) of the EFCC Act. The wordings of Section
34 (1) of the EFCC Act in my view are not capable of any interpretation other than that a Court
order is a condition precedent for the exercise of the Respondent's power to freeze an account
suspected to harbour proceeds of a crime. Failure of the Respondent to obtain a Court order
prior to giving directive to Heritage Bank to freeze the Appellant's accounts is ultra vires its
powers and I so hold." Per OJO, J.C.A. (Pp. 18-26, Paras. E-B).

1. Under the Independent and Corrupt Practices (ICPC) Act, the accused must be
a………..(a) Nigerian citizen (b)criminal (c)public officer (d)foreigner
2. Economic and Financial Crime Commission (EFCC) was established by an Act of the
State House of Assembly (a) true (b) false
3. EFCC Act assists in waging global war against corruption (a)false (b) true
4. An accused under the ICPC Act may be guilty of an offence where he fails to report an
offer of gratification (a) true (b) false

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 1. (c) public officer
2. (b) false
3. (b) true
4. (a) true

10.5 The Judicial Service Commission

There are three tiers of Judicial Service Commission: Federal Judicial Service Commission,
State Judicial Service Commission and the FCT Judicial Service Commission. All the
Commissions are established by the Third Schedule of the Constitution. Their duties are to for
the federal, "appoint, dismiss and exercise disciplinary control over the Chief Registrars and
Deputy Chief Registrars of the Supreme Court, the Court of Appeal, the Federal High Court
and all other members of the staff of the judicial service of the Federation not otherwise
specified in this Constitution and of the Federal Judicial Service Commission;" for the state,
“to appoint, dismiss and exercise disciplinary control over the Chief Registrar and Deputy
Chief Registrar of the High Court, the Chief Registrars of the Sharia Court of Appeal and
Customary Court of Appeal, Magistrates, Judges and members of Area Courts and Customary
Courts and all other members of the staff of the judicial service of the State not otherwise
specified in this Constitution;”and for Judicial Service Committee of the Federal Capital
Territory, Abuja, “to appoint, promote and exercise disciplinary control over the Chief
Registrar and Deputy Chief Registrars of the High Court, the Sharia Court of Appeal and the
Customary Court of Appeal of the Federal Capital Territory, Abuja, magistrates, the judges and
members of the District and Area Courts of the Federal Capital Territory, Abuja, if any, and all
other members of the staff of the judicial service of the Federal Capital Territory, Abuja not
otherwise specified in this Constitution and of the Judicial Service Committee of the Federal
Capital Territory, Abuja.”

Summary of Study Session 10

This Study Session highlighted some public administration regulatory bodies. Although there
are quite a number of them few but very important ones have been mentioned and briefly
introduced. Their functions and duties were succinctly explained.

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Self-Assessment Questions (SAQ)
1. Mention three public servants regulatory bodies known to you.
2. State the functions of the ICPC and the section of the enabling law.
3. What is the difference between EFCC and ICPC?
4. Enumerate the duties of the Code of Conduct Bureau (CCB).
5. To what extent are ICPC and CCB similar in role?

References
1. The Constitution of the Federal Republic of Nigeria 1999 (amended)
2. Independent and Corrupt Practices Act
3. Economic and Financial Crime Commission Act

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