Introduction
This Course is designed to introduce you to the Nigerian Legal System, which forms a vital part of
the total package for your degree course. The Course is designed to equip you with a sound
foundation of legal knowledge and enable you to cope with the legal needs of a plural society that is
faced with a rapid political, social economic and cultural development.
The Nigerian Legal System is a reflection of the fundamental character of the structure, the
institution, and the intellectual life of the society in which it operates. The extent to which it is
home grown or alien therefore goes beyond mere dictates of national pride. The study of Sources of
Law enables one to discover how much of our law is “ home grown ” or foreign. You will
demonstrate understanding of ‘Repugnancy and incompatibility’ tests and standards in relation to
our customary law.
Some might wonder if every country has its own type of legal system since practically every country has unique laws, with some
societies even having more than one set of operative laws. In Nigeria, for example, state and federal laws co-exist with English and
customary laws. Despite this, there are noticeable similarities in the legal systems of different countries which allow them to be
classified as sharing a legal system. The legal system is determined by the fundamental tenets and values which underlie the entire
body of laws and not the laws themselves. This is why even though the age of majority is 21 in Nigeria and it is 18 in the United
Kingdom, they both still practice the common law legal system
The major legal systems found in countries around the world are the
1civil law system and
2 common law system
*Civil law system: The civil law was derived from Roman law. The laws are usually codified and there is no adoption of judicial
precedents and so judgements are not binding on later decisions. This legal system may be found in much of continental Europe,
Central America, South America and several other regions
*.The common law, on the other hand, is a system based on rules and doctrines developed over time by judges and have now
formed precedents that are often binding. One easily noticeable difference is that while the courts in civil law countries do not
follow judicial precedents, the common law countries have organized hierarchy of courts to enable the practice of judicial
precedence. Common law is practiced in countries like the United States of America, the United Kingdom, etc.
However, the current legal system being practiced in Nigeria is mostly adopted from the legal system of England. In order to
function properly and allow for the unique features of Nigeria like its customary laws and military rulership in the past, the
Nigerian legal system possesses some unique characteristics. Some of the characteristics are as follows.
1 DUALITY: duality of the laws in the Nigerian legal system as the law consists of both the English law and the customary
law.Judges are presumed to know English laws and so they do not have to be proved before them. On the other hand, customary
laws have to be proved through evidence until the law becomes notorious enough to be judicially noticed.
2 Volume of external influence: The Nigerian legal system has been greatly influenced by international law. One easy point of
reference is the Islamic law which has supplanted the customary law in a lot of Northern communities
3 Diversity:There is a diversity amongst the laws in the Nigerian legal system. Two neighbouring communities may have different
laws guiding them, and this is owing to the various and diverse ethnic groups of the country. Each of the over 350 ethnic groups in
the country have their own customary laws. Even amongst the same ethnic group, two tribes might have different laws. The major
differences in ethnic laws are in marriage, inheritance and property ownership.
4 The system of precedents:decisions of courts should be binding on lower courts. Such decisions may also serve as persuasive
authority for courts of equal standing and superior courts. Even when lower courts are inclined by good reason to depart from
binding precedents, they are still bound to follow them. It has been stated that judicial precedents ensure the certainty and
predictability of laws.
5 Order of judicial hierarchy:The hierarchy determines which decisions are binding on which courts and those that are persuasive.
The Supreme Court is the highest court and its decisions are binding on all courts inferior to it. Below it is the court of appeal.
Below the court of appeal, on coordinate jurisdictions, are the Federal High Court, State High Courts, High Court of the Federal
Capital Territory, Sharia Court of Appeal of the Federal Capital Territory, Sharia Court of Appeal of the states, Customary Court of
Appeal of the Federal Capital Territory and the Customary Court of Appeal of the states
6 Fusion of the legal profession: . In Nigeria, legal practitioners practice as both solicitors and
barristers as opposed to what is obtainable in England where legal practitioners are either solicitors or barristers. Nigerian legal
practitioners are admitted to the bar as solicitors and advocates of the Supreme Court of Nigeria
7 MILITARY INFLUENCE:The repeated occurrences of coups in the past has left the legal system influenced by the military.
There were decrees and edicts which were made and are still in force, applicable by the courts.
The Meaning of Evolution of Law:
From the outset, law has always concerned itself with issues about values, rights, duties/
obligations and justice. However, the issues arise in the process of man ’ s bid to institute
mechanisms or methods that would bring about a better life for humanity. Thus, in the course of
man’s philosophic quest, natural law developed.
However, the evolution of law is a philosophic ponder/rumination on law which has its roots in an
equity. According to Unah, “The ancient Greeks, in the sense of its later refinement, bequeathed
(to give to others after death) Natural Law to the West by their search for eternal forms of virtue,
especially that of Justice”. As a doctrine, natural law has meant so many things to so many thinkers
across time from different perspective, positively and negatively.
According to Dias, natural law refers to the “ ideals, which guide legal development and
administration. A basic moral quality in law which prevents a total separation of the is from the
ought, the method of discovering perfect law deducible by reason the conditions which must exist
for the existence of law”.
To Cicero, natural law is that time law of right reason which in accordance with nature, applies to
all men and is unchangeable and eternal”.
Jerome Frank notes that “ there exists a body of fundamental, unalterable, basic principles
uniformly applicable to all mankind, for the just governance of society, those principles are rational,
it follows that men, by the use of reason, can discover them”.
However, the foregoing definitions and explanations, undoubtedly, portray the natural law concept
as a paragon of beauty devoid of any blemish.
Thus, it is important to note, that, in its modern conception, natural law has shifted emphasis to
content rather than method. It is this conception that gave birth to the term “natural law of content”.
This lays emphasis on the natural rights of man. It holds that there is a constitutional provision
which has a primacy of place, and that the precious item by which the success or failure of the legal
system is to be judged has a place in the Constitution.
The Importance of Evolution of Law to Mankind.
The essence of evolution of law or natural law is that it had replaced the primitive theory that might
is right. The instinct of self-preservation and egoism will, unless restrained, invariably cause one of
the persons powerful enough, to assert his authority or power over his fellow man and dominate
him. Let alone when a number of individuals, families or groups are living together in a society.
When socialization got to this level, the habits of the people began to crystallize into customs and
rules. Initially, when rules were broken, the people administered justice by self-help through
forcible reprisals and family feuds.
The rule of force held sway during this period as the weak, the young, the aged and those who were
deficient or disadvantaged one way or the other, were subjected to all sorts of exploitation and
deprivation. It eventually became a necessity for the society to be organized in such a way that the
competing interests in the society will be harmoniously balanced.
In its initial stages of development, law consisted mainly of customary rules or practices, and the
King or Elders gathering at the village square to resolve disputes administered ethical values.
Social order was thus maintained by a series of unorganized sanctions such as ostracism, ridicule,
avoidance of favours etc. In certain instances the punishment inflicted was disproportional to the
harm.
However, the method of maintaining social order then had undergone many layers of development
and reforms to become what we have today as Rule of Law – that is, the constitutional doctrine
which emphasizes the supremacy of the Law as administered by the government through its
agencies and officials such as the Law Courts, Police, Ministries, President, Civil Servants, etc.
Constitution, as we know, is the supreme law of the land, which has a binding force on all
authorities and persons within its environment of operation. In its drive to institute and sustain
human rights, the constitution usually provides for the fundamental rights of man – natural rights
which belong to a person for the single reason that he was born a human being, and those rights
enjoyed by him by virtue of the fact that he is a member of a particular community.
These rights are:-
(i) The right to life – section 33
(ii) The right to human dignity – Section 34
(iii) The right to personal liberty – Section 35
(iv) Right to fair hearing – Section 36
14
(v) The right to private and family life – Section 37
(vi) The right to freedom of thought, conscience and religion- Section 38
(vii) The right to freedom of expression and the press – section 39
(viii) The right to peaceful assembly and association – Section 40
(ix) The right to freedom of movement – section 41
(x) Right to freedom from discrimination – Section 42
(xi) Right to own and acquire immovable property – Section 43
(xii) The right of adequate payment for private property compulsorily acquired for
public purposes – Section 44
It is therefore, pertinent to know that the 1999 Constitution of the Federal Republic of Nigeria has
made provisions under Sections 33 to 44, the Fundamental Rights of the Citizenry. Thus, since the
Constitution aims at the realization of the natural rights of man, it stands to reason that man must
abide by the rules that promote these rights. A violation of these rules results in anarchy.
Law and morality
INTRODUCTION
The positivists posited that nothing is law except the one laid by the sovereign or his agents. The
law and morality, according to them, are mutually independent and positive law does not derive its
validity from moral values. However, in discussing the validity and efficacy of law in the human
society, one vital question that flows naturally from the whole gamut of the discussion is whether
there can be laws that are not built or constructed, without the support or sinews of sound moral
judgments. The positivists do not believe that ethics, religious or moral rules are law unless they are
enacted into law. Therefore, since the ultimate aim of law is to do good, there is no doubt that law
has a commonality of interest with morality which is basically concerned with good and bad in
society.
The difference between Morality and Law:
In some way, law and morality may appear to mean the same thing and the two are often confused.
The resemblance derives mainly from the imperative nature of both and the language employed.
For instance, “Thou shall” or Thou shall not”.
In some cases, the law appears to be behind morality while the converse is the case in others. For
instance, while adultery is a moral question in some part of Nigeria, it is not an offence under the
law. This shows that the level of moral approach is not strong enough to make it an offence. On the
other hand, the law may go beyond the prevailing
level of morality in the society. In such cases, the incidence of breach is often high. The laws
against abortion or obscenity are glaring examples of this.
Morality, no doubt, is a very vital constituent of law. Although the ultimate sanction of law is force.
It can control only external acts, but it cannot enjoin or control a spirit/conscience.
Morality appeals to a person’s conscience and sense of right and wrong, of what is good and what
is evil. As a principle of human conduct, conscience becomes a self- legislating mechanism,
enabling a person to choose according to the consciousness of his own liberty.
Therefore, one distinguishing factor is the availability of sanction. Law, unlike morals, almost
always provides for definite sanction while the breach of a moral code may only incur societal
disapproval or spiritual disapprobation.
Similarities of Law and Morality
Basic principle of morality is also the basic principle of law which means that good must be done
and evil must be avoided. According to Prof. Hart with regard to the place of morality in law, he
threw more light in the following words:
The difference between Morality and Law:
3.1
In some way, law and morality may appear to mean the same thing and the two are often confused.
The resemblance derives mainly from the imperative nature of both and the language employed.
For instance, “Thou shall” or Thou shall not”.
In some cases, the law appears to be behind morality while the converse is the case in others. For
instance, while adultery is a moral question in some part of Nigeria, it is not an offence under the
law. This shows that the level of moral approach is not strong enough to make it an offence. On the
other hand, the law may go beyond the prevailing
17
level of morality in the society. In such cases, the incidence of breach is often high. The laws
against abortion or obscenity are glaring examples of this.
Morality, no doubt, is a very vital constituent of law. Although the ultimate sanction of law is force.
It can control only external acts, but it cannot enjoin or control a spirit/conscience.
Morality appeals to a person’s conscience and sense of right and wrong, of what is good and what
is evil. As a principle of human conduct, conscience becomes a self- legislating mechanism,
enabling a person to choose according to the consciousness of his own liberty.
Therefore, one distinguishing factor is the availability of sanction. Law, unlike morals, almost
always provides for definite sanction while the breach of a moral code may only incur societal
disapproval or spiritual disapprobation.
Similarities of Law and Morality
Basic principle of morality is also the basic principle of law which means that good must be done
and evil must be avoided. According to Prof. Hart with regard to the place of morality in law, he
threw more light in the following words:
The difference between Morality and Law:
In some way, law and morality may appear to mean the same thing and the two are often confused.
The resemblance derives mainly from the imperative nature of both and the language employed.
For instance, “Thou shall” or Thou shall not”.
In some cases, the law appears to be behind morality while the converse is the case in others. For
instance, while adultery is a moral question in some part of Nigeria, it is not an offence under the
law. This shows that the level of moral approach is not strong enough to make it an offence. On the
other hand, the law may go beyond the prevailing
level of morality in the society. In such cases, the incidence of breach is often high. The laws
against abortion or obscenity are glaring examples of this.
Morality, no doubt, is a very vital constituent of law. Although the ultimate sanction of law is force.
It can control only external acts, but it cannot enjoin or control a spirit/conscience.
Morality appeals to a person’s conscience and sense of right and wrong, of what is good and what
is evil. As a principle of human conduct, conscience becomes a self- legislating mechanism,
enabling a person to choose according to the consciousness of his own liberty.
Therefore, one distinguishing factor is the availability of sanction. Law, unlike morals, almost
always provides for definite sanction while the breach of a moral code may only incur societal
disapproval or spiritual disapprobation.
Similarities of Law and Morality
Basic principle of morality is also the basic principle of law which means that good must be done
and evil must be avoided. According to Prof. Hart with regard to the place of morality in law, he
threw more light in the following words:
“The law of every modern state shows at a thousand point, the influence of both the accepted social
morality and wider moral ideals. These influences enter the law either abruptly and avowedly
through legislation or silently and piecemeal through the judicial process. In some systems as in the
United States the ultimate criteria of legal validity explicit incorporate principles of Justice on
substantive moral values. The further ways in which law mirrors morality are myriad, and still
insufficiently studied, statutes may be a mere legal shall and demand by their express terms to be
filled out with the aid of moral principles”.
Although a rule of law does not become illegal or inoperative merely because it is against the moral
code of a society, morality often gives content to law, as opposed to the claims of the positivists;
many laws are therefore predicated or based on moral values.
Thus, once upon a time, there was a running controversy over the extent to which law should be
employed to deal with questions of morality. The argument has been advanced that a particular
conduct should not be made punishable by law, merely because the wider society considers it to be
immoral, unless the need arises to prevent harm to others. But the difficulty is in the determination
of where to draw the line between private harm and societal or public harm.
Law Morality and Justice
It is important to note that the appeal to a person’s conscience in respect to what is good or bad is
done within the spectrum of what the community regards as good or bad or evil. It is upon this
predication or base that the talks about ideal morality and positive morality emerged. Thus,
morality can be viewed from two separate angles.
Ideal Morality dwells on morality in the context of the individual as a person while positive
morality discusses morality in relation to the individual as a member of a community.
As part and parcel of the community, the individual is expected to abide by the approved norms of
behaviour in the community. In this regard, his sense of what is right or wrong is essentially
controlled by what the community defines as good or bad, as the case may be.
Positive morality, therefore, refers to a body of rules supported by the prevalent opinion of the
community to which the individual belongs at any given time.
Law on the other hand, is a refection of a society’s morality. But law and morality are not one and
the same thing as what is morality right, may be legally wrong and vice versa.
Justice is fairness, equity and the right application of the law. Justice is what is what the law
supposed to produce. Though, law is synonymous with justice, yet law is not always just, such as,
when a rigid application of law results in injustice. According to Black Stone, “ Justice is a
reservoir from where the concept of right, duty and equality evolves ” . While, Salmond, further
opined that, “ though every man wants others to be righteous and just towards him, he himself
being selfish by nature may not be reciprocal in responding justly. ” This is why some kind of
external forces are necessary for maintaining an orderly society. Hence, without justice, an orderly
society is unthinkable.
Therefore, whilst a person desires absolute freedom to do and undo whatever he likes, the state has
had to limit such freedom in the overall interest of everyone and society in general. Thus, law
develops society and society develops the law by reforming it.
types of law
1.0 INTRODUCTION
Law can be divided into different branches such as Law of Contract, Company Law, Labour Law,
Constitutional Law, Criminal Law, etc. Within each subject classification you will find a body of
rules and principles, which have been developed over the years on a particular aspect of law. The
evolution and nature of subject sometimes differ significantly from one another. While some
subjects such as law of contract have very old origin, others such as Human Rights, Environmental
Law and Labour are purely Statutory in nature. It is important to note here that there is no single
universal mode of classifying law, but law can be classified in multifarious ways.
2.0 OBJECTIVES
At the end of this Unit, you will know in details the following:- (i) Each one of these classified
laws.
(ii) That there is no single universal mode of classifying law. (iii) That it is important to classify
law into different subjects.
28
3.0 MAIN CONTENT
3.1 Private Law and Public Law:
Private Law comprises those laws that serve to regulate the conduct of persons in their
interpersonal dealings, conferring status, rights and obligations on individuals or corporate persons.
It includes such diverse areas as the law of contract, property law, tort, family law and succession,
commercial law, equity and trust, etc. Thus, private law is that branch of the law of a country, which
governs the relationship of citizens among themselves.
Public Law, on the other hand, is primarily concerned with the smooth running of the machinery of
State and, consequently, caters for cases where the interest of society is directly involved or the
smooth interaction between governmental agencies and organs of the State is threatened. Subjects
like Constitutional law, Administrative law, Criminal law, Revenue law, etc., fall within the purview
of public law. Thus, public law is the branch of a country’s law, which governs the relationship
between the State and the citizens hence the name public law.
3.2 Civil Law and Criminal Law:
Civil Law is primarily concerned with competing private interests and obligations and abounds
mostly in our unwritten or judge-made laws. It is often invoked by private persons, although the
State or its organs may, in appropriate cases, initiate or defend such actions as juristic persons. Civil
actions are commenced in accordance with the relevant rules of civil procedure, the object being to
obtain relief either by way of damages or injunction. Thus, civil law has several meanings
depending on the context in which it is used. In this context, it means the law, which defines the
rights and duties of persons to one another and provides a system whereby an individual who is
injured by the wrongful act of another can be compensated for the damage, which he has suffered.
Examples of civil laws are law of contract, torts, land law, family law.
Conversely, Criminal law is the branch of law which seeks to protect the interest of the public at
large by punishing certain conducts which are believed to be harmful to the society to permit such
conducts to exist or continue. Punishment is imposed generally by means of imprisonment or fine
or both. Thus, the main object of criminal law is to punish wrong doers thereby seeking to protect
the collect interests of the citizenry against the detrimental conduct of its constituent members.
3.3 Civil Law and Common Law:
Civil Law has its origin in the Roman, having evolved from the commentaries of European scholars
on the Justinian code. The law under this system has always been flexible and persuasive, seeking a
well-ordered society through rules that expressed a sense of justice. Under the Civil Law system, a
higher legal status is given to the code
29
(statutes). A code is believed to be its own guide to the interpretation of its provision. The Civil
Law employs inquisitorial procedure.
Common Law, on the other hand, describes the law that was developed by the English courts from
the Common Customs and practices in England. Unlike the civil law system, which formulates
guiding rules in general terms, the primary concern of common law is the resolution of particular
disputes.
Thus, common law is used in this context to describe the English legal traditions while civil law is
used to describe Roman law or Roman-legal tradition.
3.4 Substantive law and Procedural Law:
Substantive law comprises the rules of law and those legal principles that define the existence and
extent of a right or liability in a particular branch of law. It is concerned with the creation,
definition and limitation of obligations.
However, in relation to legal proceedings law can be broadly divided into substantive law and
adjectival law. Substantive law embraces such subjects like Law of Contract, Torts, Criminal Law,
Constitutional Law, etc. which are concerned with statement of rights, duties and liabilities of
individuals.
On the other hand, Procedural Law involves the rules by which an action may be brought and
disposed of. It prescribes the method for enforcing the rights and duties and obtaining redress for
wrongful invasion of those rights as well as the enforcement of obligations or duties. Thus, as the
name implies, it deals with the methods of initiating proceedings to enforce a certain right or duty
and how the litigation or prosecution is conducted.
3.5 Written Law and Unwritten Law:
Law may either be written or unwritten. The word written here has a technical meaning. It means a
rule of law that has been formally enacted into a Legislation or Statute by the legislatures. Such
laws before their enactment are usually subjected to rigorous debates and serious scrutiny through
several stages before they are enacted and signed into law by the Chief Executive of the State.
The unwritten law could be explained from two different perspectives. Firstly, it may mean any
principle or rule of behaviour that is not written down at all as in the case of Customary Law and
Conventions. Secondly, it could also mean any un-enacted law even if the principles are reduced
into writing as in Case laws.
3.6 Municipal Law and International Law:
The classification of laws into Municipal and International underscores the territorial limitation of
laws. Usually, the laws of a sovereign State do not operate outside its boundaries. So, municipal
laws are such laws emanating from a particular country and having the force of law within its
territory.
30
International law, on the other hand, is the law that binds respective States and regulates their
mutual co-existence and relationship. The sources of international law include international
customary practices, Treaties, Bilateral agreements and Conventions. While individuals or juristic
persons are the main subjects of municipal laws, international law deals primarily with States.
4.0 CONCLUSION
We have discussed in full, the classification of law. However, classification may acquire a
momentous of its own and come to dictate the way in which the law is applied. Hence, it is
important to know that to classify law into different subject carries with it a danger. Thus, lawyers
may rigidly classify their clients’ claim in terms of a particular subject and fall to see that there
might be a successful argument in other branches of law that may be put to the court.
https://nou.edu.ng
