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The Sources of Nigerian Law: Legislation
Course Title: Nigerian Legal System
Course Code: LPI 203
College of Law,
Afe Babalola University, Ado-Ekiti.
LEGISLATION
• A legislation is a written Law that has been enacted by
the legislative arm of government.
• This may either be the National Assembly comprising of
the Senate and House of Representatives or the State
House of Assembly.
The Constitution
• It is written
• It has binding force on all authorities and persons in
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Nigeria
• It regulates the legislative, judicial and executive organs.
• The constitution is superior to all other laws of the land.
• The supremacy clause of the constitution is provided
in Section 1.
• See I.N.E.C v Musa [2003] 10 W.R.N. 1; Attorney
General Bendel State v Attorney General of the
Federation (1981) 10 S.C. 1
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• In People’s Democratic Party v I.N.E.C [2001] 1
W.R.N. 1, the supreme court described it as the
grundnorm of the people.
• It gives rights and imposes obligations on Nigerians
(chapter 4; sections 33-43).
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A legislation is the product of a deliberate and formal
expression of rules of conduct made by the relevant
law making authority.
• Such relevant authority must be recognized for that
purpose by the political and legal machinery of that
state otherwise, the declaration lacks legality.
• A Legislation is the main source of law making and
law reform e.g, amendment, repeal. etc
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•
• Laws are made for the peace, order and good
government of Nigeria.
• It has a tremendous effect on all other sources of Law
because it can alter their contents.
• Legislation is the most adequate means of meeting the
diverse needs of a complex and dynamic society
• It is a vital instrument of nation building.
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• By virtue of legislation, successive governments have
affected more positively, the political, economic and
social aspects of national life.
• Provides for anticipatory remedies and the making of
contingency provisions to cope with future
developments e.g cloning, gay marriage
Also, it involves a wide participation which is
achieved through the process of representative
democracy in the legislative house.
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•
• They are also enacted with relative ease
• Law making and Law reform is a continuous exercise.
Law reforms society and society reforms Law. See
Brown v Board of Education[1954] 347 US 483
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•
Legislation may be primary or subsidiary.
- Primary Legislation: Enacted laws that emanate
from the major legislative arm of government.
- Subsidiary legislation is legislation made by a person
or body other than the sovereign parliament by
virtue of powers conferred by legislation. See
Barclays Bank of Nigeria v Ashiru [1978] 6-7 S.C. 99
Power is given to persons or bodies in the executive
or judicial arms of government to make laws which
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•
helps in the effectuation of the intentions of the
legislature. E.g s 46(3)
• Trade Bank Plc v Lagos Island Local Government
Council[2003] 3 NWLR (pt 806) 11 at 27- A subsidiary
legislation when validly made, has effect as the
principal or enabling Act.
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• Subsidiary legislation are however inferior to and may
be repealed by a primary legislation.
Reasons for Delegated Legislation
• It reduces parliamentary workload
• It enables experts to legislate on technical matters
• It saves the time of parliament
• It brings Government nearer to the people
Arguments Against Delegated Legislation
• It is contrary to the doctrine of separation of powers
• It reduces the supremacy of the parliament
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•
• It is prone to abuse
• Control of delegated legislation is inadequate (s. 32)
• Inadequate publicity of delegated legislation
They may take the form of regulations, rules, orders or
Bye –laws. Examples include;
• A)Regulations issued by administrative agents of the
executive arm of govt.
• B) Rules of procedure made by judicial authorities.
See S. 46(3) 1999 Const. which provides that the CJN
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may make rules with respect to the practice and
procedure of a High Court.
• C) Legislation emanating from professional bodies e.g
Medical and Dental practitioners Act
• Limitations on subsidiary legislation are; ultra vires and
delegatus non potest delegare
• Ultra Vires doctrine was originally applied to curtail the
exercise of excess legal authority by statutory
corporations.
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•
• It means beyond your powers
• A subsidiary legislation must keep within the bounds of
the authority conferred by the enabling statute and any
abuse of that power will render the legislation void.
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• Delegatus non potest delegare means a delegate
cannot delegate its functions, unless he is otherwise
authorized. See A.G Bendel State v A.G. Federation
and 22 others. [1982] 3 NCLR 1 SC.
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• Nigerian statutes consist of the following;
1. Acts
2. Laws
3. Decrees
4. Edicts
5. Bye Laws
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1. Acts
• Acts are legislation enacted by the Federal Legislature,
that is, the National Assembly which consists of the
Senate and House of Representatives. See Section 47,
1999 Constitution.
2. Laws
• Laws are legislation or enactments made by the state
legislatures or having effect as if made by them.
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• Laws are to the state government what Acts are to the
Federal Govt. See S. 4(6)
3.Decrees
• A Decree is a legislation promulgated by the Federal
Military Government of Nigeria.
• In a military dispensation, decrees in the country are
superior legislation and take precedence over and
above all other existing statutes or legislation
including the Constitution. See Okafor v Okonkwo
[2002] 17 NWLR (pt 796] 262 at 291.
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4.Edicts
• A law enacted by the military government of a state is
called an Edict.
5. Bye -Laws
• These are legislation passed by local government
councils.
• Local government councils across the country have
various bye laws with respect to matters such as
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collection of rates, establishment of motor parks,
registration of births, deaths and marriages, shops,
sale of liquor etc. See Akingbade v Lagos Town Council
[1955] 21 NLR 90.
LEGISLATIVE PROCESS
• The powers of the National Assembly cover all matters
in the exclusive legislative list set out in part 1 of the
second schedule to the Constitution
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• It also covers matters in the concurrent legislative list.
(Part II)
• Similarly, the House of Assembly of a state has powers
to make laws with respect to matters in the
concurrent legislative list and residual matters.
• If any state law on a matter in the concurrent
legislative list is inconsistent with any law validly made
by the National Assembly on the same matter, the law
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of the National Assembly prevails and the state law to
the extent of such inconsistency becomes void.
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Ordinary Bills
• Acts enacted by National Assembly are initiated by way
of bills. See S. 58 and S. 100, 1999 Const.
• A bill may either be a private bill or public bill.
• It may be introduced by the chairman of the
appropriate committee or an ordinary member of the
House.
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• A bill may originate in either the Senate or House of
Representatives and shall not become Law unless it has
been passed. See S 58(1) and (2)
• A bill passes through three stages before it is passed
into Law.
• Stage 1- Formal reading, primary objective is to
introduce subject of bill into the house
• Stage 2- Second reading, content and purpose of the
bill is clearly defined, merits and demerits debated and
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necessary amendments introduced. Committees
created, where necessary
• Stage 3- Third reading
• The bill must be passed by a simple majority of the
members present
• The bill goes through the same procedure in the other
house
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• The bill is then presented to the president for assent
and the president shall within 30 days signify his assent
or otherwise. S 58(4), 1999 Constitution
• Where assent is withheld, the bill is again passed by
each house by two-thirds majority and becomes law. S.
58(5). See National Assembly v The President [2003] 41
W.R.N 94 (C.A) where the Court of Appeal held that
two–thirds majority of its membership is the right
interpretation
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Legislative process under the Military
• On January 15, 1966, the military came to power in
Nigeria
• All past military administrations in Nigeria assume
power ultimately to themselves.
• They assume the power to amend or suspend all or
any part of the Constitution by Decrees.
• The unsuspended provisions of the Constitution are
usually made subject to decrees and the courts are
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barred from entertaining questions as to the validity of
a Decree or an Edict. See Attorney General Anambra
State v Attorney General of the Federation [1993] 6.
N.W.L.R 692
• In the case of Labiyi v Anretiola [1992] 8 N.W.L.R (pt
258) 139 at 162, the hierarchy of Laws in a military
regime was outlined as follows;
a) Constitution (Suspension and Modification) Decree
b) Decrees of the Federal Military Government
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c) Unsuspended provisions of the Constitution
d) Acts of the National Assembly
e) Edicts of the State Military Governments
f) Laws of the State Houses of Assembly
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