Nigerian Legal System II - Study Notes (LAW212)

Historical Background of the Nigerian Legal System

Pre-Colonial Environment: In early times, the geographic area of Nigeria consisted of diverse settlements featuring approximately $350$ ethnic groups and $500$ dialects. Despite etno-linguistic differences, these groups engaged in political, economic, social, and cultural relations facilitated by rivers, creeks, and land masses.
Evolution of Societies: Settlements grew through conquest or natural growth into kingdoms, empires, and principalities. Early occupational distribution and religious worship were influenced by physical geography: - Savanna (North): Primarily pastoralists; worshipped the god of the sky. - Forest Belt (Middle): Primarily farmers; worshipped the god of land. - Coastland (South): Primarily fishermen; worshipped the goddess of the sea.
The Concept of Order: Organization required rules and compulsion for society to survive. Each etno-linguistic group developed its own concept of law and judicial processes, which varied by space, character, and level of socio-economic development.
Philosophical Perspectives on the Origin of Law: - Seneca: Argued that primitive men lived in peace with no private property or coercive government until avarice led to tyranny, necessitating laws to control rulers. - Aristotle: Viewed man as a selfish animal whose primary business is self-preservation, requiring the state, law, and a sovereign. - Cicero: Stated that variety in laws across states proves codes are based on utility, which differs by location.
Development in Nigeria: - Chiefly Societies (North and Southwest): Centralized legal systems; vertical, authoritarian, and despotic authority. Included checks and balances (e.g., in the Old Oyo Empire, king-makers could demand a tyrannical Alafin "open the calabash"—commit suicide). - Chiefless Societies (East of the Niger): Horizontal lines of authority; democratic and egalitarian. Judicial power was based on rank, age, or status within the social unit.

Essentials and Definitions of Customary Law

Defining Customary Law: The text provides several definitions: - Practices which, by common adoption and long unvarying habits, have the force of law. - Rules in a particular community that have obtained the force of law through long usage. - A body of customs accepted as binding by members of a community. - Organic or living laws of indigenous people regulating lives and transactions. - Unrecorded tradition and history that has grown to stability. - Usages or practices that have become compulsory and acquired force of law regarding place or subject matter.
Characteristics of Customary Law: - Mirror of Accepted Usage: Reflects the culture of the people observing it. - Flexibility: It is organic and not static; it adapts to socio-economic changes (e.g., the shift from inalienable family land to alienable land). - Unwritten Status: Largely unrecorded either wholly or partly. - Existential Requirement: Must be in existence at the material time; cannot be "dead ashes" of the past. - Universal Application: Must enjoy general assent within the specific community.
Problems with Customary Law: - Lack of Codification: It remains uncertain and vague, residing in the minds of traditional custodians. - Multiplicity and Diversity: Difficult to apply due to cultural apathy and ideological conflicts. - Expert Testimony Contradictions: Experts often provide testimony favoring the side that hired them (Lewis v. Bankole [1908]).
Judicial Rejection Criteria: Courts may refuse to enforce a custom if it is: - Repugnant to natural justice, equity, and good conscience. - Incompatible with any law currently in force. - Contrary to public policy or injurious to public interest.

Schools of Thought and Sources of Law

Ancient Notions: - Maine: Argued "Custom is a conception posterior to that of themistes or judgments." Royal rules predate customs. - Gray: Contended customs evolved from rules laid down by judges.
The Socialist Perspective: - Karl Marx: Law is an embodiment of class interests. Customary law might be excluded under this definition as it does not derive legitimacy from the state. - Vinogradoff: Defined law as rules imposed by society regarding the exercise of power, accommodating customary law.
The Positivist School: - Austin: Suggested law must be the command of the sovereign (custom falls short). - H. L. A. Hart: Argued law lacks secondary rules (procedural rules for modification or recognition). - Dworkin: Counter-argued that courts exist to fill gaps; law is an instrument of human interaction.
Evidentiary Support for Custom as a Source: - Roman Law: The XII Tables ( $449\,BC$ ) regulated "self-help" which was customary in origin. - Code of Hammurabi: ( $2000\,BC$ ) enacted customary laws antecedent to the code. - English Land Law: Customs like "Borough English" (ultimogeniture) were enforced until the Law of Property Act $1926$ .

The Colonial Legal System and Plurality of Laws

Traditional Administration: Quick, cheap, simple, restitutive, and reconciliatory. Admission of hearsay was allowed if relevant.
British Imposition: The general policy was to replicate the United Kingdom legal model in the colonies. Features not found in the West were labeled "outside" or uncivilized.
Statutory Framework: - Ordinance No. 3 of 1863: Established English-type courts in Lagos Colony. - Ordinance No. 4 of 1876: Empowered courts to execute the Common Law of England, Doctrines of Equity, and Statutes of General Application (originally as of July $1$ , $1874$ , later changed to January $1$ , $1900$ ).
Conflicts of Law: Plurality allows different systems for different transactions (e.g., Christian vs. Customary marriages). Tests for application include: - Nativity Test: Used in Northern and Lagos States. - Nigerian Descent Test: Used in Eastern States.
Displacement of Customary Law: Customary law is ousted if: - Parties expressly agree it shall not apply. - The nature of the transaction is unknown to custom (e.g., statutory marriage). - It is contrary to the "Interest of Justice."

Customary vs. Islamic Law (Maliki School)

Sources of Islamic Law: - The Holy Qu’ran: Given by God. - Sunnah/Hadith: Deeds/saying of Prophet Mohammed. - Ijma: Agreement of learned scholars. - Qiyas: Analogical deductions. - Istihad: Legal presumptions/customs.
Comparative Comparison: - Written Status: Islamic law is written; customary law is largely unrecorded. - Liability Defences: Intoxication is a partial defence in common/customary law but a crime per se in Islamic law. - Standard of Proof: In Islamic Huddud crimes (theft, adultery), it requires evidence from at least $3$ competent male witnesses.
Dispositional Methods: - Islamic Tariff System: Rebellion (death), Adultery (stoning), Alcohol (flogging), Theft (loss of limbs). Victims may opt for "blood money." - Customary Penalties: Flogging, banishment, or "substituted punishment" (e.g., farming for the victim).
Constitutional Supremacy: Under the $1999$ Constitution, the constitution is supreme ( $Section\,6$ ). Whenever state/subordinate laws (including Sharia or Customary) conflict with Federal Law or the Constitution, they are null and void to the extent of inconsistency.
Doctrine of Covering the Field: Explained by Fatayi Williams, CJN in AG (Ogun State) v. AG (Federation) [1982]: When Federal and State laws are identical on a subject, the Federal law prevails, though this doesn't automatically invalidate the state's power to legislate.

Historical Development of Judicial Institutions

Colonial Sequence: - 1861: Treaty of Cession of Lagos. - 1863: Consular Court, Equity Court, and Supreme Court established. - 1866: Court of Civil and Criminal Justice replaced the initial Supreme Court. - 1876: Supreme Court re-established for Lagos, applying English Common Law. - 1886-1889: Chartered companies (e.g., Royal Niger Company) administered justice. - 1900: Protectorate of Northern Nigeria created with its own Supreme Court. - 1933: Protectorate Court Ordinance introduced High Courts and Magistrate Courts, allowing appeals to the West African Court of Appeal. - 1954: Federal Supreme Court established alongside Regional High Courts. - 1963: Appeals to the Judicial Committee of the Privy Council abolished; Supreme Court of Nigeria became the apex court.
Modern Federal Courts ( $1999\,Constitution$ ): - Supreme Court of Nigeria: ( $Sections\,230-236$ ). - Court of Appeal: ( $Sections\,237-254$ ). - Federal High Court: ( $Sections\,249-254$ ). - High Court of the FCT: ( $Sections\,255-259$ ). - Sharia Court of Appeal of the FCT: ( $Sections\,260-264$ ). - Customary Court of Appeal of the FCT: ( $Sections\,265-269$ ). - National Assembly Election Tribunal: ( $Section\,285$ ).

Judicial Personnel and Qualifications

Supreme Court (CJN and Justices): - Appointment: By the President on recommendation of the National Judicial Council, confirmed by the Senate. - Qualification: Minimum $15$ years as a legal practitioner.
Court of Appeal (President and Justices): - Qualification: Minimum $12$ years as a legal practitioner.
High Courts (Federal and State): - Qualification: Minimum $10$ years as a legal practitioner.
Sharia Court of Appeal (Grand Kadi and Kadis): - Qualification: Minimum $10$ years as a legal practitioner PLUS recognized qualification in Islamic law from an approved institution.
Customary Court of Appeal (President and Judges): - Qualification: Minimum $10$ years as a legal practitioner PLUS considerable knowledge of customary law.
Removal from Office: Requires an address supported by a $2/3$ majority of the Senate (for Federal heads) or State House of Assembly (for State heads).
Judicial Immunity: - Judges/Magistrates have complete immunity for statements made in court and acts done in discharge of duties. - If a judge is sued, the plaintiff must prove the judge acted beyond jurisdiction. - Immunity does not cover acceptance of bribes. - A legal practitioner is immune from negligence suits concerning court conduct as they are "ministers in the temple of justice."

Personnel other than Judicial Officers

Attorney-General (AG): Chief law officer. Position is political. Must be a legal practitioner of $10$ years standing. - Nolle Prosequi: Power to discontinue criminal proceedings at any stage before judgment ( $Section\,174$ ). This power is not subject to judicial review (R v. DPP Ex. P Jones [2000]).
Police Force: Established by the Police Act. Duties include maintenance of order, investigation, and prosecution of $80\%$ of criminal cases (primarily in Magistrate courts).
Prisons: Primarily a Federal agency aimed at reform and rehabilitation. Operates under the "Standard Minimum Rules for Prisons" adopted from the United Nations.
Legal Practitioners: Must have a law degree, Bar Certificate from the Nigerian Law School, and be formally "Called to the Bar." Controlling organs include the Council of Legal Education, NBA, and Body of Benchers.

The Process of Administration of Justice

Jurisdiction Defined: A court is competent if it is properly constituted, the subject matter is within its scope, and the case was initiated by due process (Madukolu v. Nkemdilim [1962]).
Civil Process: - Forms of Action: Writ of Summons (most common), Petition (divorce/elections), Originating Summons (non-contentious/statutory), and Motion (interlocutory). - Pleadings: Exchange of facts to define the area of dispute. Areas include discovery, interrogatories, and depositions. - Remedies: - Legal: Damages (compensatory, aggravated, exemplary, nominal, contemptuous). - Equitable: Specific performance, injunction, rectification, rescission. - Prerogative Orders: Certiorari, Prohibition, Mandamus.
Criminal Process: - Arraignment Pleas: Guilty, Not Guilty, Autrefois Acquit (previously acquitted), Autretois Convict (previously convicted), Pardon, or "Mute to Malice" (standing silent). - Trial Steps: Evidence-in-chief, cross-examination, re-examination. - Allocutus: Post-verdict plea by the convict to mitigate sentencing. - Sentencing Options: Death (not for pregnant women or those under $17$ ), imprisonment, flogging (max $12$ strokes), fines, forfeiture, and probation.
Bail: A "contract" for the appearance of an accused. Defined by Archbold as a surety for appearance. Constitutional right under $Sections\,35-36$ .

Inferior and Special Courts

Magistrate Courts: Grades in Lagos range from Chief Magistrate I ( $N25,000.00$ financial limit; $7$ years sentencing) down to Magistrate Grade III ( $N1,500.00$ limit; $1$ year sentencing). In the North, Magistrates handle only criminal cases; District Courts handle civil cases.
Juvenile Welfare Courts: For person under $17$ (South) or $18$ (North). Procedure is informal; sits in different rooms from adults. Focus is on welfare and rehabilitation. Terms like "conviction" are replaced by "order."
Coroner’s Court: Holds inquests into violent, unnatural, or sudden deaths. Does not convict; issues indictments.
Courts Martial: Military courts for personnel of the Army, Navy, or Air Force. Presided over by officers (e.g., Major and above). Sentences are subject to confirmation by the convening officer.
Legal Aid Scheme: Established by the Legal Aid Act $1976$ . Targets indigent citizens. Eligibility threshold was initially $N1,500$ per annum, later increased to $N5,000$ . Free legal aid applies to murder, manslaughter, and grievous bodily harm cases.

Conceptual Legal Terms

Legal Personality: Begins at birth for natural persons; at incorporation for businesses ( $Section\,37\,CAMA\,1990$ ). Ends at death for humans; at dissolution for corporations.
Ownership: The "Fee Simple" or Dominium. Right of user, unrestricted disposition, and unlimited duration (Austin). Distinguished from possession.
Possession: Consists of two elements: - Corpus: Physical control. - Animus: Mental element (intention to exclude others).
Deceit: A misrepresentation of fact made willfully or recklessly, intended to be acted upon, resulting in damage. Historically developed from interfering with court processes to contractual warranties (Derry v. Peek [1889]).
Conversion: A tort of dealing with goods to deprive the owner of use. Evolutions of the forms of action include: - Trespass: Direct interference with possession. - Detinue: Unlawful refusal to hand back goods. - Replevin: Recovery of goods wrongly distrained. - Trover: Action for damages for conversion (originally based on the fiction of "losing and finding").