NIGERIAN LEGAL SYSTEM 1 (PIL 205) SLIDES

NIGERIAN LEGAL SYSTEM 1(PCL 205)

THE RECEPTION AND APPLICATION OF ENGLISH LAW IN NIGERIA

u When the British or English people came to colonise Nigeria, and made it a part of theBritish Empire, now the Commonwealth, they brought and left behind the Englishlanguage and their way of life, including the English law. English law or the laws ofEngland came into Nigeria when it was received by virtue of local statutes thatpermitted its application in Nigeria.

u Among the local statutes which received English law for application in Nigeria are:u Ordinance No. 3 0f 1863 which introduced English law into Lagos Colony.u Supreme Court Ordinance No. 4 of 1876 which applied to Lagos Colony.u Court of Appeal Act and federal High Court Act.u The High Court laws of the Regions, now States.u Interpretation Act; etc.

COMPONENTS OF THE ENGLISH LAW THAT WAS INTRODUCED

u The English law that was introduced into Nigeria is made of three aspects:1. The Common law of England.2. Equity3. The Statutes of general Application in force in England on January 1, 1900.u Apart from these three aspects or branches of the English law which were

received into Nigeria by virtue of local statutes, there were other English laws which were applied to Nigeria such as:

u 4. English legislations passed between January 1, 1900 and October 1, 1960 which directly extended to Nigeria.

COMPONENTS OF THE ENGLISH LAW THAT WAS INTRODUCED

u These statutes were few and examples of them are:i. Copyright Act, 1911ii. Nigeria Independence Act, 1960.iii. Nigeria (Constitution) Order in Council, 1960.u Some of these laws which directly applied to Nigeria still continue to exist in

Nigeria after independence on October 1, 1960, in the form of re-enactments as local statutes whilst others have been repealed.

u However, from October 1, 1960 when Nigeria became independent, the British Parliament stopped making laws which directly extended to Nigeria.

COMMON LAW OF ENGLAND

uCommon law or the Common law of England is so called because it is the law which is common to all parts of England and Wales.

u It is the law that grew over time from the practices and customs which were common to the people of England and Wales. Therefore, it is the general custom of the people of the United Kingdom.

u It is largely unwritten law as opposed to statutory law which is codified.


u THE FIRST COMMON LAW JUDGEu The king himself was the first Common law judge. He held court and sat as

judge. The people sought justice at his hands. He was the dispenser of justice and people revered him.

u When the king became very busy by reason of state affairs to hear all the cases coming before him, he appointed members of his court or council to sit in judgment and minister justice on his behalf throughout the realm. Though, the king was not physically present in the court-room, he was assumed to be there spiritually, guiding the hand of justice. Thus, any disrespect or disobedience of the judge is considered to be disrespect or disobedience of the king or of the spiritual presence of the king.

u

COMMON LAW OF ENGLANDu ITINERANT JUDGES AND GROWTH OF COMMON LAWu Common law really started to grow as a result of the practice of the kings who

used to appoint and send out royal judges on itinerant to dispense justice in the counties of the realm, on his behalf and in his name. These itinerant judges went out from London to all counties of the Kingdom on visits regularly to dispense better justice which obtained the approval of the people.

u The royal judges were usually noble personalities (e.g. bishops, barons, earls, knights, etc) and were appointed from the king’s council.

u These judges were untrained in law and when they came to a county, they first of all had to ascertain the custom of the county or community, which custom they then applied in the local county court to the cases brought before them. The judgments given in these cases were then enforced in the name of the king.


u THE COMPLETE FORMATION OF COMMON LAWu On completing their regular circuits, the judges returned to the

royal courts in Westminster, London and discussed the customs ascertained from the counties and the decisions they gave in the cases. As a result of sifting these customs, discarding those which were unreasonable and retaining those which were fair, the judges over time arrived at a uniform body of custom law, from these customs which commonly applied in the kingdom. This uniform body of custom law, formed from the customs of the people is and has been known as the Common law of England.


u THE COMPLETE FORMATION OF COMMON LAW (cont)u Common law continued to grow with the application of stare decisis (the

principle of following judicial precedent), meaning, let the decision stand, whereby any legal rule or law rightfully stated or formed in any new case was applied and followed by other judges in subsequent matters and problems of law which are similar to the earlier case brought to be followed as precedent.

u English text writers generally agree that the formation of Common law was completed around 1250 A.D. By this time, Common law through application of judicial precedent had become more certain and predictable, thus acquiring the 3 basic essentials of a good law which are: (a) Certainty (b) Uniformity and (c) Consistency.


u THE COMPLETE FORMATION OF COMMON LAW (cont)u SUMMARYu Common law is law which grew from immemorial customs and practices that were common

to the people of England and Wales.u It grew from the customs common to the people of the realm.u It grew as a result of the practice of the judges who were applying the customs of the people

to decide the cases which came up for hearing.u It evolved, unfolded, developed and became complete as English judges declared or

revealed that which has always been the law.u Judges played a prominent role in the evolution and complete formation of Common law.u Tort, Criminal law, Agency, land law etc all grew from Common law. Today, many of these

laws have been codified in statutory form, e.g. Criminal law.u


u INADEQUACIES OF COMMON LAWu Common law was inflexible and worked hardship in some cases.u It did not provide redress for litigants in some cases as it was inadequate to

meet all legal problems.u At this time, Equity which is fairness, natural justice or good judgment was then

developed by the Lord Chancellor in the Court of Chancery and together with statute law, were brought in to act as a gloss, to supplement and smoothen the hardship and fill in the gaps of the Common law.

EQUITYIn plain language or ordinarily, Equity means fairness, natural justice, or good judgment.

In the second sense, Equity means those rules of fairness, natural justice and moral rightness which were formed by the Lord Chancellor and Chancellors in the Court of Chancery as the “keeper of the King’s conscience” to temper the rigidity and defects of the Common law. Simply put, Equity means the rules of fairness formed and administered by the Court of Chancery to supplement Common law in order to do justice.

EQUITYCommon law was rigid and insisted on strict application of the letter of the law, whether it was just or unjust. Equity as principles of fairness and natural justice or the application of good conscience or good judgment in the adjudication of cases was then formed and brought in to right the wrongs of the Common law. Therefore, Equity grew as a reaction and in response to remedy the inadequacies of the Common law which did not provide enough heads of claim and remedies to meet the needs of a growing society.

EQUITYu INADEQUACIES OF COMMON LAW AND THE RISE OF EQUITYu The main inadequacies of the Common law that led to the need and rise of

Equity include:1. Too much concern with Procedure and Technicalities.2. High cost of Common law actions.3. Corruption of Court Personnel.4. Delays in doing justice.5. Inadequacies of common law writs.6. Non-recognition of a mortgagee’s Equity of Redemption.7. Non-recognition of the right of a Beneficiary in Trust Property.

EQUITYu INADEQUACIES OF COMMON LAW AND THE RISE OF EQUITY (cont)u 8. Inadequacy of Common Law Remedies (The main remedy of Common law

was damages (payment of monetary compensation) which was not an adequate compensation in every case). Common law lacked equitable remedies such as:

u (a) Specific Performance (Decree or Order to compel a person to perform his obligations) u (b) Injunction (Order to stop a person from carrying out or continuing a wrong) u (c) Subpoena (A form of summons which commands a recipient to appear before the Court

of Chancery on a specified date and time, under a penalty)u (d) Estoppel; u (e) Rescission (Restoring the parties to the position they would have been if there was no

contract. The effect is to relieve parties of any further obligation to perform a contract) u (f) Tracing; etc.

EQUITYu INADEQUACIES OF COMMON LAW AND THE RISE OF EQUITY (cont)u Many people who were unable to get help at the Common law courts due to

some of the reasons earlier stated, started taking their complaints directly to the king, that is, the king sitting with his council. They petitioned the king. After a time, due to pressing state business, the king referred the matters to the council for trial. Later, the council due to the pressure on the members, began to refer the petitions to the Lord Chancellor, to hear the petitions alone. With time petitions were addressed to the Lord Chancellor alone.

u Due to the large volumes of petitions received, the Court of Chancery was created. It is headed by the Lord Chancellor and many Vice-Chancellors are appointed under him to do justice. With the merger of Equity and Common law, the Court of Chancery is now a division of the High Court of Justice of England.

EQUITYu INADEQUACIES OF COMMON LAW AND THE RISE OF EQUITY (cont)u All this time, Common law and Equity operated side by side with mutual tolerance, but

soon conflict cropped up. The conflict and continued rivalry between Common law and Equity came to a head in the EARL OF OXFORD’S CASE ((1615) 1. Rep.Ch 1) in 1615.

u This case brought law and equity into open conflict and King James 1 intervened and ruled in favour of Equity that whenever Common law and Equity are in conflict, Equity should prevail. This decision which made Equity superior to Common law has been codified as statute law by the English Judicature Acts 1873 – 75, and since then, this decision regulates every conflict between the principles of Equity and the rules of Common law.

u The two courts settled down with separate but complementary jurisdictions. Equity never says that Common law is wrong, but only provided alternative remedies to legal problems, by filling the gaps left by Common law and which were causing hardships to litigants.

EQUITYu THE FUSION OF COMMON LAW AND EQUITYu Equitable and legal remedies had to be sought in the different courts system

by litigants. Later on, by way of reform, this situation was rectified by statute by the Judicature Acts 1873 -75 which amalgamated the two English court system (Common law courts and the Equity courts of Chancery) into one court and also codified the decision of King James I in the Earl of Oxford’s Case (supra) to the effect that whenever there is a conflict between Common law and Equity, Equity should prevail.

u The decision in this case applies in all Common law jurisdictions throughout the world including Nigeria and like other countries the decision has been codified as statute law in Nigeria. Since then, the two courts system have become one and administered Common law and Equity jointly, though their principles do not mix.

EQUITYu THE MAXIMS OF EQUITY: PRINCIPLES OF EQUITYu A maxim is a basic truth, principle or rule. The maxims of Equity are the basic

principles which Equity has developed and by which it intervenes to do justice. The maxims are the basic principles of Equity.

u The following are common examples of the expression of the principles of Equity:

u 1. Equity does not suffer a wrong without a remedy. See Oyekanmi v Nepa(2000) 15 NWLR Pt 690, P.414 SC; Ashby v White (1703) 1 ER 417

u 2. Equity follows the law. Akilu v Fawehinmi (No 2) (1989) 2NWLR Pt 102 p122 SCu 3. Equity acts on the conscience.

EQUITYu THE MAXIMS OF EQUITY: PRINCIPLES OF EQUITYu 4. Equity acts in personam. - Sosan v Ademuyiwa (1986)3NWLR Pt 27 p.241 SCu 5. Equity looks on that as done that which ought to be done. See Howe v Lord

Dartmouth (1802) 32 ER 56.u 6. Equity imputes an intention to fulfil an obligation. Steadman v Steadman

(1974) 2 All ER 977.u 7. Equity looks to the intent (intention) rather than the form. Berry v Berry (1929)

2 KB 316; Ukaegbu v Ugoji (1991) 6 NWLR Pt 196 p.127 SC.u 8. Delay defeats Equity. Adebanjo v Brown (1990) 3 NWLR Pt 141 p.611 SC.u 9. He who comes to Equity must come with clean hands. Adejumo v

Ayantegbe (1989) 3 NWLR Pt 110 p. 417 SC.

EQUITYu THE MAXIMS OF EQUITY: PRINCIPLES OF EQUITYu 10. He who seeks Equity must do Equity. Kasumu v Baba Egbe (1956) AC 539;

Governor of Lagos State v Ojukwu (1986)1 NWLR Pt 18 p. 621 SC.u 11. Equity aids the vigilant and not the indolent. Obodo v Ogba (1987) 2 NWLR

Pt 54 p.1 SC.u 12. Equity will not aid a volunteer. Penn v Baltimore (1750) 27 ER 1132.u 13. Where there are equal equities, the first in time prevails.u 14. Where there are equal equities, the law prevails. Dearle v Hall (1828) 38 ER

475.u 15. Equity does not act in vain. Awolowo v Minister of Internal Affairs (1962) LLR

177;

EQUITYu THE MAXIMS OF EQUITY: PRINCIPLES OF EQUITYu 16. Equality is Equity. Ipaye v Aribisala (1930) 10 NLR 10.u 17. Equitable remedies are discretionary. Kotoye v CBN (1989) 1 NWLR Pt 98

p.419 SC.u 18. Equity regards the balance of convenience.u 19. Equity will not permit a statute to be used as a cloak for fraud. Udolisa v

Nwanosike (1973) ECSLR 653; Leeman v Stocks (1951) Ch 941.u 20. Equity never wants for a trustee

EQUITYCONCLUSION

In conclusion, Equity which is fairness, natural justice, good conscience or good judgment, was developed by the Lord Chancellors in the Court of Chancery, and together with statute law were brought in to act as a gloss, to fill in the gaps, to smoothen the hardships and to supplement Common law, thus, making English law a more complete legal system.

STATUTES OF GENERAL APPLICATION IN FORCE IN ENGLAND ON JANUARY 1, 1900

u A statute was of general application in England on January 1, 1900, if at that date the statute was either: (a) Applied by all civil or criminal courts in England or (b) Applied to all classes of persons in England.

u However, where a statute applied to only certain classes of persons or was applied by only certain courts, it was usually held not to be a statute of general application and therefore inapplicable generally in other countries and protectorates that made up the British Empire, now known as the Commonwealth.

u The local statutes which permitted the application of English law in Nigeria received the English Common Law, Equity and Statues of General Application, which were in force in England on January 1, 1900 and made them applicable in Nigeria.


u Statutes of General Application were statutes passed by the English Parliament and which were meant to apply or extend by reason of subject-matter to the various colonies and protectorate of the English Empire. A statute of general application need not have applied in England.

u In Lawal v Younan ((1961) 1 All NLR 257 @ 266 – 269), Brett FJ was of the opinion that the statutes which were applicable in England on January 1, 1900 and which were applicable in Nigeria as statutes of general application could be classified mainly into two groups as follows:

1. Statutes concerning property and conveyancing. Examples include the Wills Act1837, Common Law Procedure Act 1852, Conveyancing Act 1881, Trustees Act 1888, LandTransfer Act 1897, etc. See also Young v Abina (1940) 6 WACA 180.

2. Statutes relating to commercial transactions. Examples are Infants Relief Act 1874, Bills of Exchange Act 1882, Partnership Act 1890, Sale of Goods Act 1893, etc.


u If a statute will cause manifest absurdity or work contrary to the intentions of the British Parliament in any part of the British Empire, it was not applied in such given part of the British empire, though it was a statute of general application. Thus, a statute may be of general application, but the courts will not apply it in Nigeria. See Brett JF in Lawal v Younan (supra)

u Since independence, the English statutes of general application which applied in Nigeria have either been repealed or reformed by re-enacting them as local laws. Very few still exist in their original form.


u It is generally agreed that the cut off January 1, 1900 date is applicable only to English statutes of general application and therefore bars English statutes made after that date onwards to this day, from application in Nigeria. Thus, the principles of Common law and Equity current in Nigeria should apply in Nigeria as they are not affected by the January 1, 1900 cut of date provided that:

u (1) Such principles of Common law is not in conflict with any Nigerian statute or case law on the subject matter; and

u (2) The jurisdiction of the relevant court permits it to apply English law, subject of course to the overriding power of the court in question to ascertain the current state of such law in England.


u In the light of the fact that statutes made in England after January 1, 1900 are not applicable in Nigeria in the sense that, the British Parliament no longer makes law for Nigeria, the legislative arms of the Federal and State Governments now have the full duty of enacting legislations or laws (S. 4 (1)(5)(8)(9) and 4(6) - (9) of the 1999 Constitution which provides for the legislative powers of the Federal and State Governments respectively) to meet the needs of the Nigerian society and to maintain parity with legal developments in other countries, especially, common law countries, such as England and the rest of the Commonwealth.

u In this wise, many statutes have been enacted locally, many of which are mainly reproductions mutatis mutandis of the relevant English legislations after which they are modelled. Some examples of some of such Nigerian legislations are: Evidence Act, Criminal code, Weights and Measures Act, Hire Purchase Act, etc.


CONCLUSION

u It is hoped that the enactment of local statutes will be a continuous exercise, so that reforms will continue to be made in deserving aspects of our laws, to serve our developmental needs. Ideally, law should reform society whilst society should in turn reform the law to meet its needs. This of course is a continuous cycle.

NIGERIAN LEGAL SYSTEM 1 (PIL 205) SLIDES

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