1

Lecture Notes on Legal Method I

Course Code - JIL 111

Course Contents
Part-One

 Introduction: Meaning of Legal Method and Law

Part-Two

 Concepts and Objectives of Law

Part-Three

 Theories of Law: Schools of Law

Part-Four

 Aspect of Law: Types of Law

Part-Five

 Classifications of Law
Part-Six

 Method of Social Control through Law

Part-Seven

 Legal Reasoning and Approach to Problems

Part-Eight

 Legal Reasoning in Legislation

Part-Nine

 Doctrine of Judicial Precedent: Principles and Rules of Law

Part –Ten

 Selected Tutorial Questions

Lecturer: Dr Kenneth Ikechukwu Ajibo
LLB (UNN), BL (Nig), LLM, PGD, PhD (Hull)
Former Lecturer School of Law, Politics and Business
University of Hull, UK,
Barrister & Solicitor of the Supreme Court of Nigeria.
k.i.ajibo@gmail.com; 09060241827.
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Part One: Introduction

Definition of legal method

Law operates in a society based on certain methods or processes which must be properly
understood for law to be put to best use as an instrument of social control. There is no
generally agreed definition of legal method. However, the phrase ‘legal method’ contains two
words – ‘legal’ and ‘method’. The word ‘method’ in ordinary parlance, means a way of doing
something or the quality of being well planned and organised.1 The word ‘legal’ which is an
adjective, entails something related with the law.

Legal method can therefore be defined as an attempt to explain or analyse the technique of
‘thinking like a lawyer.’2 It is learning to study the use and construction of legal rules, with a
view to gaining insight into how law is planned and organised to attain its objectives in a
society.3

The Nigerian legal method is the study of law, and various methods, approaches, processes
and procedures that can effectively and beneficially be used to meet the needs of the
individual and state.4 Understanding this approach is not an easy one given that scholars view
the subject of legal analysis from different perspectives based on their background and
experiences. Nonetheless, the major concerns of legal method include but not limited to:

a) the definition and role of laws in a society;

b) the different theories of law,
c) the different classification of law,
d) the sources of law,
e) the English law and the Customary law,
f) law as a means of regulating society,
g) the legal methods of reasoning and resolving disputes,
h) Parliaments and its legislative process,
i) interpretation of statutes,
j) legal research and legal writings.

1
A.S Hornby, Oxford Advanced Learner’s Dictionary, 6th ed, United Kingdom, Oxford University Press, 2000
P.740
2
A. Holland & J.S.Webb, Learning Legal Rules, London, Blackstone Press, 1991,p.9
3
Ibid
4
E. Malemi, The Nigerian Legal Method, Lagos ,Princeton Publishing Press, 2012 P.2
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The Idea of Law: Law and Its Role in Society

All over the globe, even in the freest societies, there are laws, and a law enforcement
mechanism including sanctions put in place to guide persons and bodies in the overall
benefits of society. Therefore, while a person desires absolute freedom to do or not to do
whatever he likes, the state has had to restrict absolute freedom in the overall interest of
everyone and society as a whole.5

Human conduct and almost every field of human activity is regulated by law, which
prescribes rules of human behaviour or the basic structure, standards or conditions for
practice, activity or operation in a given field of endeavour. Where law protects a right, there
is usually a corresponding duty. Similarly, whenever law imposes a duty, it creates a
corresponding right.6

Law is necessary for orderliness in a society. Without law and law enforcement agencies,
society would be in disorder. There will be no rights and duties. Neither would the purported
rights and duties be respected nor protected. Rights and duties will be meaningless.
Orderliness and right living would be impossible. There would be chaos and anarchy.7

Therefore, the existence of law and law enforcement is a necessity in the overall interest of
everyone and society for continued protection of: persons, their properties, rights and
freedoms on the one hand; and for the safety of the state and its interests on the other hand as
opposed to lawlessness, chaos and disintegration. Indeed, for normal life to continue and for
business and every legitimate activity of life to be possible and thrive, there has to be in
place:

i) Laws,
ii) Courts,
iii) Personnel of the law; and
iv) An administration of justice system,

That is, a law enforcement system, including the courts, personnel of the law, including
sanctions and a panel or correction system and facilities in place. Accordingly, law is
essential for any given unit of people, body, community, state, or country.

5
For further reading see, D. Lloyd, Introduction to Jurisprudence ,7th ed, London, Freedman, 2005.
6
See for instance the Constitution of Federal Republic of Nigeria (CFRN) 1999 (as amended), ss.24, 33-46.
7
In the words of Thomas Hobbes: life would be brutish, nasty and short.
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Defining Law

Generally, law8 is:

1) A rule.
2) A rule of behaviour
3) The rules and regulations of a particular country
4) The rules usually made by the legislative arm of government which order the way
persons, bodies and society should behave; and
5) The whole system of rules of a country.

Apart from the above meanings, scholars have tried to define law but no single definition is
authoritative and free from criticism, and there are as many definitions as there are scholars.
It is not possible to give a single definition of law that will end all definitions. The followings
are few definitions of law given by various authors.

Karl N. Llewellyn (1893-1962) an American jurist and scholar said that: ‘What officials do
about disputes is the law’.9

According to Herman M. Gluckman (1911-1975) law is: ‘The whole reservoir of rules on
which Judges draw for their decisions’.10

The eminent English Jurist Sir Williams Blackstone (1723-1980) said: ‘It is the rule of action
which is prescribed by some superior and which the inferior is bound to obey’.11

Professor John W. Salmond (1862-1924) defined law as: ‘The body of principles recognised
and applied by the state in the administration of justice’.12

In conclusion, law is rule which regulates how persons and bodies should behave. Law is a
code of conduct for persons, bodies and society in general.

Characteristics: The Nature of Law

Law has many features or attributes some of them include:

8
See A. Obilade, The Nigerian Legal System, Ibadan, Spectrum Law Publishing, (1997) P.3
9
Cited by L.B. Curzon, Basic Law: An Introduction for Students, 2nd ed, 1990, P.5
10
Ibid
11
Ibid
12
Ibid
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1) Law is a collection of rules, remedies and sanctions as the case may be. Law is a
collection of do’s and don’ts or norms. Law prescribes what a person should do or not
do.
2) Law is usually made by the legislature, that is, parliament, or by a delegated
legislator, or other law maker, according to the system of government or legal system
that is in place in a given country. But it can also evolve from customs.
3) Law is mostly codified, that is, written, at the instance of the lawmaker, especially,
where it is made by the parliament and so forth. However, laws which crystallised
from custom are mostly unwritten and today they exist either partly written or wholly
unwritten and in the form of judicial precedents.
4) Law exists in the continuum or continually, except, where serious, political or
economic upheaval occasion a disruption of law and order.
5) Law is very fundamental given that it regulates all aspect of life and human activity.
6) Law is a reflection of a moral state or condition or condition of a society. Law reflects
morality, but law is not necessarily moral, nor coterminous with morality. In other
words, law ought to be moral but in reality, law and morality are not one and the
same.
7) Law is often a reaction or response of the lawmakers to the problems and issues
confronting society. It is often passed in response to deal with issues plaguing society.
8) Law is a reflection of social attitudes. An instance is the law of social security and
welfare state, which is for example a reflection of the need to care for the weak and
needy.
9) Law may be logical, but it is neither necessarily based on logic nor coterminous with
logic. Rules of law and judicial decisions may not necessarily be logical.
The Functions of Law

Law, whether spiritual, natural or human is a necessity for orderly, rights and good life in
every sector. The roles of law to society are numerous:

a) It acts as a code of conduct. A rule of action to ensure that persons, bodies and society
live orderly and peaceful lives.
b) It is a means of resolving a dispute peacefully. It administers justice through the court
systems.
c) It specifies the structure, framework and the order for all aspects of life and society
whether it be the structure of government, business and so forth.
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d) Law acts as an instrument for regulating society. Law prohibits what is wrong,
lawlessness and unlawful conduct.
e) It creates law enforcement agencies, institutions, administration of justice system,
penal and correctional institutions and facilities.
f) It grants remedies and justice to those who have been wronged.
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Part-Two: Concepts and Objectives of Law

Law has so many concepts and objectives which it seeks to attain generally. Many of these
concepts will be discussed hereunder.

Law and Order

The basic function of any responsible government is to maintain law and order. Law and
order protect lives and properties within its territory. It also prevents any external aggression.
The opposite of law and order is anarchy and chaos. Anarchy including chaos does not mean
the absence of laws but its ineffectiveness or non-enforcement.

Law and Justice

In ordinary meaning, law and justice are related. Justice means fairness, rightness, right, good
and reasonable. Justice seems to mean a correct or proper application of a law as opposed to
arbitrariness. The purpose of law, courts, and legal system is to do justice. Law is not justice
but seeks to attain justice. Therefore, law is not an end in itself, but a means to attaining
justice. It would be wrong to assume that the concept of justice means the same thing to
everybody at all times. The word ‘justice’ entails different things to an employer and
employee; to the leaders and followers and the rich and the poor to plaintiff and defendant.
Many factors contribute to the shaping of one’s conception of justice including but not
limited to home background, religious beliefs, educational qualifications, socio-political
affiliations, personal idiosyncrasies. The issue is further compounded given that the society
cannot devise rules of law that will fully satisfy the often competing and conflicting demands
of everyone at all times.13 For example, what Mr A may regard as justice may not be justice
to Mr B given the competing and conflicting interests. How these interests are balanced
largely determine the conception of justice.

Law and Freedom

Law recognises the freedom of individuals in the state. It attempts to control the exercise of
that freedom in a way that will advance the interests and objectives of the individuals and the
State.14 Freedom can be classified into economic, political, social, cultural, religious

13
R. Pound, Jurisprudence vol 3 pp.287-291.
14
See generally Chapter IV of the Nigerian Constitution, 1999 (as amended).
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including intellectual and so forth.15 The promotion and protection of this freedom are
fundamental to the normal existence of a man.16 But without the control of the freedom
through the application of laws there may be a situation of anarchy and chaos. The pertinent
question remains: to what degree should the society attempt to restrict the individual
freedom? The answer to this, to some extent depends on the nature of socio-political
structure of the State and its economic policy. An instance to buttress this is that the extent of
liberty available for people in Capitalist state would be quite different from that in Socialist
or Communist States. Similarly, even in a democracy where the rule of law is observed, the
fundamental human right which protects this freedom is usually not absolute. There are still
some limitations in some ways to ensure the freedom of others which can be attained by
striking a balance between the competing interests.17 In practice, the freedom of speech does
not include the freedom to speak or write a malicious false statement about another person.
In essence, freedom of speech must be balanced with another person’s right to be free from
defamation of character.

Law and State

A State is a political entity conferred with certain rights and duties under the law. As an
artificial entity created by law, a State must act through some human agents. The structure
through which the human agents act is called ‘the Government.’ Government provides the
apparatus for the administration of the State. It is a channel through which the general policy
guidelines of the State are attained. The three organs of government namely: the Legislature,
the Executive and the Judiciary are component parts of government in a State. It is the law
that defines the degree of the powers of each arm of government including to regulate their
inter-relationship with one another.18 The process of emergence, composition and functioning
of different organs of government may differ from one country to another but a state does not
lose its statehood simply because its government is oppressive or undemocratic in
international law.

15
For example, see the International Convention on Civil and Political Rights 1966; International Convention on
Economic, Social & Cultural Rights 1966.
16
T. A. Aguda, The Judiciary in the Government of Nigeria (1983) p.4
17
See the Bill of Rights which has been incorporated into the 14 th Amendment to the Constitution of the US
1987. The Fundamental Human Rights provisions are contained in Chapter IV of the Nigerian Constitution 1999
as amended.
18
See A.G of Ogun State & Ors v A.G. of the Federation & Ors [1982] 3 N.C.L.R.166.
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Law and Legitimacy

Legitimacy means lawfulness. Before now, legitimacy was majorly premised on leadership
qualities of a particular leader. But, gradually it has turned into a matter of legal issues.19
Currently, legitimacy does not lie on legality alone but it is further based on rule of law
accepted both by those who administer the system and by the population generally. 20 The
citizens must accept that their leaders have been given the mandate to rule from the
population before the government is considered to be legitimate.

Law and Sovereignty

Law properly enacted through the representative of the people in the legislature or their
delegates in proper circumstances are part of the expression of their sovereignty. The ability
of the governed to change their leader through a peaceful means or violent approach where
possible is part of the expression of sovereignty. The Nigerian Constitution aptly captures this
when it provided that the ‘Sovereignty belongs to the people of Nigeria from whom
government through this Constitution derives all its powers and authority.’21

Law and Morality

Every society has its own moral rules and standard. Morality is seen within the purview of
rights and wrong or good and bad behaviour. Morality is the ultimate principle which
provides a platform to judge social behaviour. Moral standard is usually higher in comparison
with the criterion established by the law. Professor Lon Fuller, a natural law theorist argues
that there is no separation between law and morals.22 According to him, law is a purposive
exercise involving governance of human beings by rules. In Fuller’s view, law as a purposive
exercise contains some internal morality. However, law is not morality in a real sense given
that an act may be morally wrong but not in breach of any law. For instance, while the act of
prostitution may be morally wrong by societal standard, it may not be legally wrong except it
breaches a written law.23 A further example can be seen in the Nigerian case of Aoko v
Fagbami,24 where adultery was held not to be a criminal offence in view of the fact that it

19
See generally the Fundamental Objectives and Directive Principles of State Policy of Nigeria in the 1999
Constitution (as amended).
20
J.H. Farrar and A.M. Dugdale, Introduction to legal method, London , Sweet and Maxwell, 1990: P.11
21
See s.14 (2)(a) CFRN 1990 (as amended).
22
L. Fuller, The Morality of Law (rev.ed) New Heven 1969, P.15
23
Nullum Crimen Sine Lege; see s.36 (12) CRFN 1999 (as amended).
24
[1961] 1All NLR 400
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was not defined as such and its punishment prescribed in a written law. 25 The relevant
constitutional provisions thus effectively abolished customary criminal law because of its
unwritten character.26

Law and Human Rights

Human rights are inalienable rights that a person has just by virtue of the fact that a person is
a human being. Human rights are the most fundamental and important aspect of rights. In
other words, they are basic rights of human beings. The fundamental human rights are
enshrined in the Nigerian constitution.27 Examples of these human rights are:

i) Right to life.
ii) Freedom of movement
iii) Freedom of association and assembly

These rights are not absolute as they may be derogated by enacted law which is considered
reasonable for democratic society to ensure public order and security.28

Democracy

This concept literally means the rule of people. In modern usage, democracy is a system of
government in which the citizens exercise power directly or elect representatives from among
people. It is the rule where the majority have their way while also permits the minority to
have their say.

Constitution

This is a body of document which provides how a particular set of people, group or country is
to be governed. Constitution is a document that provides how a country can be governed.
Constitution can be written or unwritten. The Nigerian constitution is written while the
British constitution is largely unwritten. Under the British system, it does not necessarily
mean that nothing is written down but it does not contain in a single document.29

25
See DPP v Shaw [1962] A.C.220, where the House of Lords held that conspiracy to corrupt public morals was
unknown to law and not covered by the law.
26
See s.36 (12) CFRN 1999 (as amended).
27
See Chapter IV of the CFRN 1999 (as amended), ss 33-44.
28
See CFRN 1990, s.45.
29
British constitution is largely unwritten as can be seen from the judicial precedents and their customs.
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Constitutionalism

A body of rules that state that law is determined by constitution. This rule provides that the
government’s authority is determined by the body of laws or constitution. The essence of the
concept is to protect the people from the government’s arbitrariness.

Rule of Law

The concept ensures the restriction of the arbitrary exercise of power by subordinating it to
well-defined and established laws. A principle of governance in which all persons,
institutions and entities public or private including the state itself, are accountable to laws. In
other words, individuals, persons and governments shall submit to, obey and be regulated by
law, and not arbitrary action from individual or group.
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Part-Three: Theories of Law

There are a number of generally accepted theories relating to the origin of law. A theory
governs how a society works including the way that a social phenomenon is seen and
understood.30 In other words, where law came from and why it developed as it did are
questions that can be approached by using theoretical perspectives of different scholars.31 The
various beliefs of scholars on law have come to be regarded as ‘philosophies of law,’ ‘schools
of jurisprudence’ or simply ‘theories of law’. While each legal philosophy is usually treated
separately for the sake of simplicity, in reality the idea of jurist may embrace different
theories. It is proper to appreciate that the theories have been applied in varying degrees by
almost all the legal systems in the world at varying times in their legal history. It would be a
mistake for a law student whether in undergraduate or postgraduate class to assume that each
philosophy is necessary for a particular legal system to the exclusion of others. Similarly,
legal philosophies are often implicit and not explicit.32 Some of the most important
philosophies will be briefly discussed as detail analysis is usually reserved for Jurisprudence
class in final year.

Positivist School

Positive law is derived from the word ‘posit’ which means ‘to put’ or ‘to place’. Positive law
is therefore, the law put or placed or imposed upon the situations by the rulers.33 The main
proponent of the theory is John Austin, who postulated the ‘Command Theory of Law’ in his
book entitled: The Province of Jurisprudence Determined.34 He defines law as ‘a command
set by a superior being to inferior beings and enforced by sanctions’. Positive law is any law
made by a person legally empowered to make rules having binding effect on the people in
general. This can be in form of constitution, statutes enacted by the legislature, the case laws
made by judges, the rules and regulations made by administrative agencies.35 The major
attributes of this theory are:

(a)The existence of a known sovereign.

30
W. Hazou, The Social and Legal Statue of Women: A Global Perspective ; New York, Preager ,1990 PP.29-30
31
Ibid.
32
B.D. Fisher, Introduction to the Legal System: Theory, Overview, Business Applications, West Publishing Co;
1977 P.vii
33
Ibid.
34
J. Austin, The Province of Jurisprudence Determined, California, Dickenson Publishing Inc, 1975 Lectures 2 -4
35
Ibid.
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(b) The sovereign with no legal limitation ‘uncommanded commander’: and

(c) The inferior must be in the habit of obeying the superior given his coercive power to
impose sanction.

The Austinian approach to law has been criticized on many grounds. First, laws are not
always stated in a commanding language such as ‘shall’ or ‘shall not’ as postulated by
Austin.36 Although some laws especially some aspects of Constitutional law may be couched
in imperative tone, it is wrong to assume that all laws are command. An example is the rules
relating to Wills which do not mandate a person to make a will. Similar instance is in relation
to marriage which permits either statutory or customary marriage to the intending couples.

Second, the issue of an ‘uncommanded commander’ is only possible in dictatorial regimes

where the country is not ruled by the rule of law but by the whims and caprices of the
dictator. It is argued that no one including the sovereign is above the law even under the
military government. For example, cases are available where the actions of the military
government have been declared ultra vires, null and void because of their non-conformity
with the provision of the law.37

Third, Austin wrongly assumed when he stated that everyone usually respects the law
because of fear of the sanction by the sovereign. But, in reality, it can be argued that a
number of people respect the law not because of fear of sanction but because it is in tandem
with their way of life or agree with their principle. For example, many smokers do not quit
smoking in public places simply because of penal sanction but sometimes a matter of choice.

Pure theory of Law

The pure theory of law which was propounded by Professor Hans Kelson disputes the
command theory. The main argument here is that the legal validity of each rule is determined
simply by reference to the question whether it has been laid down, or posited in line with
whatever requirements as stipulated by legal systems in question.38 Kelson opines that a law
is a norm. In essence, a law is valid if it has been created by a norm which itself has been

36
See CFRN 1999 (as amended), s.130 (1) which provides that ‘There shall be for the Federation a president’.
37
The Supreme Court in Lakanmi v A.G. (Western State) and Others (1971)1 U.I.L.R. 201, declared Forfeiture of
Assets (Validation) Decree 1968 No.45 of 1968 null and void.
38
I. Mcleod, Legal Method, London , Macmillan Press Ltd; 1993, p.6
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created by a higher norm within the legal order. The logical connection of norm has to be in
order until we arrive at non-law created entity, which is called grundnorm.39

The theory has been criticised on the basis that it only emphasises the formal validity of law
rather than its function and effects in the society. The theory does not concern itself with the
moral content of law. That is, whether it is right or wrong as long as it has satisfied the formal
validity or requirement of law. It does not have regard for feeling of human kind and may be
a ready tool for dictators.

Second, determining the grundnorm as a constitution in the modern society is hard.40 The
argument that the constitution is the grundnorm remains largely controversial with respect to
the Nigerian situation if it is strictly scrutinised as it can be asked further: whether the current
constitution derived its validity from the military or from the people? Who created the
constitution? Does it reflect the wishes of the people? If no, can an imposed constitution by
the military be truly regarded as a grundnorm without the inputs from the citizens in a
democracy? On the whole, both the positivists and pure theories of law are of the view that as
long as a particular law satisfies the appropriate technical criteria of validity or formality it is
a law. It does not matter whether such law has any moral quality or fair in application.

Natural Law School

Natural law means what is ‘fair’ ‘just’ or ‘right’. The natural law theory argues that there are
certain objective principles in every man, no matter his race or colour telling him what is
‘fair’ ‘just’ or ‘right’; encouraging him to do what is good and abstain from what is evil.
These principles came from some supernatural force or abstract universal truth and exist
despite any human enactment.

In essence, through thoughtful examination of the facts of nature, man can find the just
solution to the social issues in his society. By careful observation and reason, man has the
ability to make good and just law that accord with the law of nature. Any man-made law
which does not accord with the law of nature should not command the obedience of the
people. The major proponents of the theory of natural law include Thomas Aquinas, Grotius
and Zeno.
39
While every other norm is generated from the grundnorm and their validity is traceable to it, the origin or
validity of the grundnorm is not traceable to any norm.
40
In PDP v I.N.E.C [2001] 1 W.R.N. 1, the Supreme Court described the constitution as the grundnorm of the
people.
 15

Thomas Aquinas argued that ‘every law is derived from God the ultimate law maker’. To
him, ‘law is a rule of reason for the common good and made by him who is charged with the
care of the community’. He believed that the eternal law is the law of God that controls all
creations. Aquinas opined that ‘the first rule of reason is natural law’. Human law or positive
law is man-made law which should be in consonance with natural law and reason.

Hugo Grotius further stated that natural law can be used as a basis to formulate a coherent
law that is suitable for all times and places. He believed that natural law was different from
positive law and that natural law can be used to test the rightness or wrongness of man-made
or positive law. Grotius is usually regarded as the father of international law.

The natural law philosophy has served as the basis for the development of the concept of
justice, human rights and democracy worldwide. It was invoked by the Americans in their
war of independence from Britain.41 Similar invocation was made during French revolution
including the struggle for African independence. The Niger Delta people in Nigeria have
invoked the concept as the basis of their agitation for a more equitable distribution of revenue
from the mineral resources derived from their area.42

While the concept of natural law emphasises on ‘what should or ought to be done’ instead of
‘what is done’, in reality, the judiciary interprets what the law is and the executive enforces
what is contained in the rule book as the laws. The natural law considers the right reasoning
as a guide for discerning the most perfect forms of laws. However, right reasoning is a
subjective concept given that it cannot be subjected to empirical scrutiny and interpretation.

Similarly, natural law suffers from ‘the multiple conscience issue’ given that different
individuals from different background may have different conceptions of ‘fairness,’
‘rightness,’ ‘justice,’ with regard to the same problem. On the basis of this, it can be argued
that the theory could lead to lawlessness if everybody is permitted to act according to what he
or she believes to be ‘right’ or ‘just’ to him or her as dictated by his or her reason without any
formal sanction. This is why only written laws that have been rigorously debated and
objectively determined are enforceable by the appropriate bodies in the society.

41
See the preamble to the Constitution of the United States of America.
42
The Niger Delta people have been asking for the enthronement of the regime of resource control from the
Federal Government.
 16

Historical Law School

Friedrich Carl Von Savigny, a German aristocrat, played a prominent role in developing this
theory. This theory argued that proper law must follow the history and custom of a country.
The concept favours the evolution of law over a period of time as opposed to the theory of
fairness, goodness and justice.43 The concept which argues that the law originates from
custom is based on the belief that rules of customary law are rational or fair. But this does not
necessarily follow in practice as some customary rules have been used to subject some class
of people to status of servitude, prejudice, inheritance issues and labour matters.

In Nigeria, customary rules are only applicable where they are deemed to satisfy the three
major tests: the tests are that the rules must not be:

i) repugnant to natural justice, equity and good conscience;

ii) contrary to public policy; and
iii) incompatible directly or by necessary implication with any law for the time being
in force.

Sociological Law School

Eugene Ehrlich and Roscoe Pound were the prominent scholars under the sociological school
of law.44 According to Eugene Ehrlich, there is a relationship between law and the societal
conduct and that each has effect on the other. The societal conduct determines the rule laid
down in legal sources such as statutes and decided cases. In essence, societal value and
conduct determines the meaning of law and not the rules laid down by the sovereign.

Therefore, Ehrlich was of the view that one could not appreciate the law of the society by
merely reading through the formal legal sources. Rather, one should go to the society to
understand how that law is obeyed, ignored, executed, modified or supplemented by the
society. While conduct can influence the law as argued by this school, there are instances
where the law influences conduct. For example, car owners register their vehicles given the
legal requirements to do so. Similarly, motorists stop at roadblocks because of the obligation
imposed by the law. Also, the extent the law influences conduct is hard given the implication
without such law.

43
H. Kantorowicz, ‘Savigny and the Historical School of Law’ (1937) L Q 326.
44
Other notable sociologists include Auguste Conte (1798-1892); Max Weber (1864-1920) and Emile Durkheim
(1858-1917).
 17

Furthermore, Roscoe Pound has a different idea of sociological school from that of Ehrlich.
His argument is based on competing claims in the society given the limited resources
available for use. According to him, in satisfying human wants balancing is necessary among
the competing claims in such a way to avoid disruptions in established institutions. The
institutional emphasis here would be that of court system and other arms of government.
Pound attaches great weight on value system. However, Pound’s theory of balancing
competing claims failed to provide the scientific approach in assessing this. His argument
appears to attach more weight to value, which would prevail as against what is ‘right’ or
‘fair.’ However, Pound’s analysis of balancing has received some attention in the law courts
as a means of resolving competing claims.

Utilitarian School

The chief proponent of this Law School is Jeremy Bentham (1748-1832). According to this
theory, law should encourage communal utility which in this context is about people’s
happiness. The greatest good of the greater number of people should be the basis of making
the appropriate laws in the society. Bentham identifies four major utilities which include:
security, equality, liberty and abundance. To attain the utilitarian goal, the law must balance
the individual’s interest with that of the communal interests. The freedom of individuals can
be sacrificed or curtailed to achieve the greater good for the society.

The main criticism of this school is that it does not resolve the issue of balancing both
individual and communal interests. Neither does it state how best to achieve this.

Functional School

The theory is predicated on pragmatic approach because it emphasises on what a court will
do with regard to a given legal problem. Judges have taken up the role of making rules where
legislatures have not spoken or spoken vaguely. In other words, it is immaterial the contents
of statutory books and decided cases, rather the decision of a court determines the meaning of
the law. In essence, one has to wait for a court decision on his or her exact legal issue before
one can understand the meaning of law.45

One recurring problem with this theory is the focus that the meaning of law can only be
sought through the court decisions without the inputs from the legislature and administrative

45
This idea was best expressed by the distinguished United States Jurist Oliver Wendell Holmes Jr. Holmes
played a fundamental role in bringing about a changed attitude to law.
 18

agencies. This seems misleading in practice given that in modern times, legislature remains
the primary law making institution although its power can be delegated.

The Realist School

The analysis about this theory focuses on the court system especially on trial courts with the
aim of reforming the judicial system. The realists are of the view that in discussing law and
legal rules, too much attention was often given to the bare legal rules while such attention
was not given to the human elements in the application of the rules to particular cases. In
essence, judicial rule is not as objective as it would appear in the legal books in view of the
fact that judges and jury may be influenced and affected by extra legal factors much more
than the evidence adduced in the trials and arguments of the parties. In deciding a case,
judges may be affected by their way of life, educational background, what they like or
dislike, colour, age.46 Scholars have argued that there is no such thing as a ‘Realist School’
and that the so-called realists are ‘experimentalists’ and ‘constructive sceptics.’ Others see
the realist school as a combination of analytical positivists and sociological concepts to
jurisprudence.47

In conclusion, it is apposite to state that many of the philosophers who postulated the above
theories came from significantly diverse backgrounds and orientations. A good number of
them came from academics of varied disciplines including law, history and philosophy and so
forth. Others were priests, judges and so forth. The differences in their orientations,
backgrounds and experiences no doubt informed their major conceptions of law from
different viewpoints. An example is that a legislator’s conception of law might be quite
different with that of a judge. Same applies to a clergyman’s analysis of law in comparison
with an accused standing trial in a court. Given the development, it is rather safe to submit
that all definitions are relatively arbitrary and ad hoc. No definition is universally accepted
and there is no definition of law to end all definitions.

46
The realists criticised all inequalities in administration of justice. The exponents of the American Realism are
Oliver Wendell Holmes, Justice Jerome Frank and Karl Llewellyn.
47
See F. Adaramola, Basic Jurisprudence, Nayee Publishing Co Ltd, 2003 Pp-318-9.
 19

Part Four: Aspects and Types of Law

There are different aspects or types of law which include:

A) Eternal law
B) Divine law
C) Natural law
D) Human law or Positive law.

Eternal Law

Eternal law includes divine or spiritual law. This is a law put in place by God in the universe
and may continue to last as long as the universe exists. Its existence cannot be removed by
humanity. Hence, it is constant, everlasting and universal. Eternal law is said to be the
foundation of all laws.

Divine law

Like eternal law, divine law is the law of God or made by God or spiritual law. An instance
of this is the Ten Commandments in the Holy bible. It is premised on the incapability of a
man in making a just or valid law given that man is sinful. Hence, man must turn to God who
makes a perfect law for the universe.

Natural law

Lord Lloyd described the expression ‘natural law’ as a body of objective moral principles
based on the nature of the universe and discoverable by reason.48 Natural law is the law put in
place by God to govern man, nature or environment and the physical universe. Natural law is
part of divine or spiritual law. Instances of natural law are law of gravity, law of punishment,
circle of birth, death, youth and old age. The notion about natural law includes the idea that it
is a body of moral rules which are discoverable through God. But the predominant notion
currently remains that it is discoverable through human reason.

Human or Positive law

Positive law is also regarded as human or man-made law in contra-distinction with natural
law. Law declares by man such as parliament, state, country or an entity. It states that law is

48
L. Lloyds, Introduction to Jurisprudence, London, ELBS, 1985, P.93
 20

posited and laid down by the authority of the society which provides the sole source of
validity. Legal positivist does not bother about ethical or moral content of the law. Examples
are constitution, criminal code and so forth. Jeremy Bentham is considered as one of the
leading scholars under legal positivism. Others are John Austin, Joseph Raz, Neil McCormic
and Rowland Dworkin. Bentham contends that law is a command issued by a sovereign to his
subordinates or by a superior being to his inferiors.49 Austin argues that law is a rule laid
down for the guidance of the intelligent being by an intelligent being having power over
him.50 Both Bentham and Austin agreed that the command must be backed by sanction.
However, in reality, strict application of this rule can lead to dictatorship, despotism and
tyranny.

49
J. Bentham, An Introduction to the Principles of Morals and Legislation, (Burns and Harts (eds), 1970
Chapters 1-5
50
J. Austin, The Province of Jurisprudence Determined, California , Dickenson Publishing Inc, 1975 Lectures 2 -4
 21

Part Five: Classifications of Law

Apart from the types of law discussed previously, law can be further examined under these
classifications.

i) Public and Private Law

ii) Civil and Criminal Law
iii) Substantive and Procedural Law
iv) Municipal and International Law
v) Written and Unwritten Law
vi) Common Law and Equity.
vii) Conflicts of Laws or Private International Law
viii) Primary and Secondary Law

Public and Private Law

Public law is concerned with the protection of the state and its organs. 51 It regulates the
relationship between the state and the citizens. Examples of public law include Constitutional
law, Administrative law, Criminal law and International law among others.

Private law, on the other hand, governs the relationship between individuals. It deals with the
protection of individual rights and duties. Examples include: Law of Contract, Torts, Family
law and Succession, commercial law and banking among others.

Civil and Criminal Law

Civil law is the law that defines the rights and duties of persons to one another. It entails a
system whereby an individual who is injured by wrongful act of another can be compensated
for the damage which he has suffered. Examples are Contracts, Torts, Land and Family laws.
Civil wrongs lead to recovery of money or enforcement of right but not punishment.

Criminal law, on the other hand, attempts to protect the interest of the public generally by
punishing certain conduct which is deemed to be harmful to the society. Punishment is
imposed in form of imprisonment or fine or both to the offender. Crimes may be serious such
as murder, rape among others. It can be lesser offences such as minor traffic violation, minor
assault which may be tried summarily. To be successful in a criminal trial, the prosecution

51
N. Tobi, Sources of Nigerian Law, Lagos, MIJ Professional Publishers Ltd, 1996, P.15
 22

has to prove its case beyond reasonable doubt, but in a civil wrong, the plaintiff need only to
prove its case upon the balance of probabilities. The law demands a higher standard of proof
in a criminal case so as to protect the accused person from the mighty power of the state and
to avoid the danger of being convicted wrongfully.

There may be some overlapping in both systems of law. For example, assault, false
imprisonment and defamation are both torts and crimes. Similarly, if A steals B’s money, A
will be guilty of stealing if convicted (criminal offence) and in the same vein be liable to B
for tort of conversion (a civil wrong).

Substantive and Procedural or Adjectival Law

Substantive law is the body of rules or legal rules. It defines a code of conduct and prescribes
a penalty for the violation of that code. A breach or violation of substantive law may result in
a remedy or punishment which may be in form of a compensation, fine, term of
imprisonment and so on. It covers such subjects as law of Contract, Torts, Criminal law and
Constitutional law that involve the statement of rights, duties and liabilities of individuals.

Procedural or adjectival law, on the other hand, concerns the approaches of proceedings to
enforce a certain right or duty and how the litigation or prosecution is conducted. It deals
with how the substantive law can be enforced in the court. It provides the method and process
required to initiate an action in court; mode of proof; the manner of prosecution of evidence
including the manner of giving judgement and enforcement.52

Municipal and International Law

Municipal law may be national, domestic or local law which entails the internal law of a
particular country. It embodies all the laws of a country that governs the relationship between
the individuals and between the individual and the State.

On the other hand, international law or law of nation regulates the relationship of sovereign
nations and international organisations. It is the rules developed from customs, practices,
bilateral and multilateral agreements which govern the conduct of nations, and international
organisations, and their relationship with persons whether natural or juristic. Important
sources of international law include: treaties, international custom, general principles of law

52
See the High Court Civil Procedural Rules of various States in Nigeria.
 23

recognised by civilised nations including judicial decisions and teachings of the most highly
qualified publicists of the various nations.53

Written and unwritten Law

Written law is a rule that has been formally enacted into a legislation or statute by the
legislature. Such laws are debated and scrutinised through various stages before they become
a valid law. Written laws are usually found in the documents and can be said to be a
combination of norms in one or more document. They may be called a Code, Statutes, Acts,
Decree, Edicts, Laws or Ordinances. The Nigerian Constitution is a written law.

On the other side, unwritten law may mean any rule or principle that is not written down at
all such as the customary law and conventions. But it could mean unenacted rule in form of
case-law. British Constitution is an example of unwritten law.

Common Law and Equity

Common law was developed by the King’s Bench, the Court of Common Pleas and Court of
Exchequer.54The history of common law was traceable to the period immediately after the
Norman Conquest of 1066 AD. Common law grew from the custom common to the people of
England and Wales. In practice, common law is very strict, formal and full of legalism.

The rule seemed to be that a plaintiff had no cause of action unless a claimant came within
the scope of an existing writ. If not, he would be left without any remedy. Even where he gets
a writ to fit his claim, he may not be able to get an effective remedy at common law. Given
the obvious injustice at common law, plaintiffs who could not get remedy started sending
petitions to the King to use his prerogative to do justice. In view of the seeming injustice
under the common law, equity was introduced to ameliorate this in form of a decree by the
Court of Chancery.

Equity means fairness, just, or natural justice, morally right and good. Both the common law
and equity were applied side by side under the English law. But the joint administration of
common law and principles of equity did not resolve the argument as there was this issue of
which of the two branches of law is superior and should prevail in a conflict.55 However,
sections 36-44 of the Judicature Acts settled the problem by providing that where there is a

53
See Article 38(1) of the Statute of International Court of Justice.
54
See O. Obilade, The Nigeria Legal System, Ibadan: Spectrum Law Publishing, (1979)
55
See Earl of Oxford Case (1615)1 Re.Ch.1.
 24

conflict between the rule of common law and doctrine of equity, the doctrine of equity would
prevail.56 The provision of this statute has remained part of the Nigerian law.

Conflict of laws or Private International Law

Private international law is otherwise regarded as conflicts of laws. This is the law which
regulates relationship between two or more persons living in different countries. It regulates
their rights and duties. An example in reality is the international business involving persons
in different countries. Where there is a dispute involving the rights and obligations of the
parties in international commerce, the conflict of laws comes in to especially, determine the
following issues relating to:

a) Jurisdiction – in which country should the case be prosecuted?

b) Law – which laws should apply?
c) Enforcement of the foreign judgment –how should the judgement be enforced?

Primary and Secondary Law

Primary law is otherwise known as parent law. This is a law made by the primary law making
bodies or the legislature. Examples of primary laws are Acts of Parliament such as laws of
the Federation of Nigeria 2004.

Secondary law commonly regarded as subsidiary or delegated legislation is a law made by

bodies other than the primary law making bodies. Examples are rules, order, bylaws and
regulations. For example, the Chief Justice of Nigeria makes rules and regulations for the
practice of courts in Nigeria.57

56
Judicature Act 1873-75
57
See CFRN 1999 (as amended), s.46 (3).
 25

Part Six: Method of Social Control

Law may be used in various ways to regulate society. Social control is described as the
control of social behaviour that affects others. In other words, it is a mechanism through
which a society exercises its authority over its members and enforces conformity to its
norms.58 Every mechanism of social control has its method.59 Quinney observed that
mechanisms for social control vary considerably in the forms of conduct they control and the
method they employ for such regulations.60 In the forgoing, there are about eight major
methods of social control in modern law which can be itemised as follows:

i) Passage of laws prohibiting wrong, unlawful, and criminal activities.

ii) The Penal Techniques - Criminal Justice
iii) The Grievance- Remedial Techniques - Civil Justice
iv) Passage of enabling laws for private arrangement-Private Arranging Technique
v) The Constitutive Technique
vi) Establishment of Public Agencies-Administrative Regulatory Technique
vii) Taxation and other Fiscal Techniques - Financial measures
viii) The Public Benefit Conferral Technique.

Passage of law prohibiting wrong, unlawful, and criminal activities

In order to maintain order and peaceful existence, government usually passes several laws to
regulate society. The primary law making body, that is, the legislature or a delegated
authority may usually enact or pass various laws to prohibit anti-social wrong or unlawful,
and criminal conduct so that there will be peace for everyone to go about his or her normal
businesses in a given society. There are laws in virtually all aspects of life in Nigeria, whether
in criminal matters or civil matters. Examples can be seen in the laws of the Federation of
Nigeria 2004, enacted at the federal government level, to deal with matters of various
denominations. Examples of criminal laws or laws containing criminal provisions at the
Federal Government level that prohibit various wrongs, unlawful conducts, and criminal
activities and with sanctions are:

58
O. Otite and W. Ogionwo, Introduction to Sociological Studies, Ibadan, Heinemann, 1979 at pp 374-375
59
Method has been defined as a way of doing thing. A mode of operation or a means of attaining an object.
see Black’s Law Dictionary, 7th ed, Minn, West Group,St Paul, 1991, p. 1005.
60
R. Quinney, The Social Realty of Crime, Little Brown & Co. Inc 1970; see R. Pound, Social Control through
Law, New Heven, Yale Univ. Press, 1948 p.20.
 26

(a) the Criminal Code,61

(b) the Economic and Financial Crime Commissions,62
(c) the National Agency for Food and Drug Administration and Control Act.63

Similarly, examples of civil laws at the Federal Government level, prohibiting various civil
wrongs or criminalises civil wrongs are:

(a) Company and Allied Matters Act,64

(b) Child Rights Act65; and
(c) Bank and Other Financial and Institutional Act66 and so forth.

The Penal Techniques – Criminal Justice

In order to discourage social deviant, the penal method provides for conduct which is
prohibited, the penalty for breach, the procedure for determining the guilt of those who
violate the rules and the suitable punishment. The State plays an important role in the penal
technique given that it provides the machinery required, for instance, to make an arrest until
an accused is convicted or acquitted from an alleged crime.67 Given that the public frowns at
criminal behaviours and the inherent danger it imposes if allowed unchecked, the penal
approach is applied to both the high and low in the society. In practice, it is doubtful whether
the penal technique has been able to attain its set objects of reducing the deviant behaviours
in view of numerous waves of crimes bedevilling the country ranging from petty stealing,
robbery, advanced fee fraud (419), bribery, corruption, electoral offences among others.
Furthermore there are few alternatives to penal techniques within the disposal of the court
which may include but not limited to:

(a) Non intervention 68

61
Cap C.38, 2004
62
Cap E.I, 2004
63
Cap N.I, 2004
64
Cap C. 20, 2004
65
Cap C. 50, 2004
66
Cap B.3, 2004.
67
See Police Act Cap P3 LFN 2004, s.4; see ss 174 and 211 of the Constitution of Federal Republic of Nigeria
1999 (as amended) on the powers of the Attorney General of the Federation and the State.
68
It is hardly possible to penalise every immoral conduct that is socially condemnable. Take for instance on
immoral conduct involving two consenting adults engaging in lesbianism, homosexuality, adultery or even
prostitution. See Aoko v Fagbemi [1961]1 All NLR 400, where adultery was held not to be a criminal offence on
the ground that it was not defined and prescribed by law. See also CFRN 1999 (as amended), s.36 (12).
 27

(b) Warning or Caution69

(c) Self-Help70; and

(d) Compounding.71

The specific areas of the law which come into play under the penal system are mainly the
substantive and procedural aspects of criminal law.72

The Grievance Remedial Technique – Civil Justice

Unlike the penal method that relates to public order or criminal law, the grievance remedial
technique is applied especially on the area of civil law. The technique provides some
substantive legal rules, principles and standards which create legal rights and duties and
remedies to bolster those rights which can be called upon in case of breach. Substantive laws
of this civil technique dealing with rights and obligations include Contract law, Torts,
Commercial law, Labour law, Equity and Lands. The procedural aspects of the technique
include: Civil Procedure, Civil Remedies, and legal advice. Possible remedies for breach of
this civil technique involve general damages, special damages, specific performance,
injunction, restitutio in integrum. The main argument of this method remains that where
adequate compensation is rendered to an aggrieved person, he or she is likely to feel that
justice has been delivered thereby preventing the resort to self-help or anarchy.

However, there may be alternatives to this grievance remedial technique. A conduct may be
both a crime and a civil wrong.73 The consequence is that the wrong doer may risk being
prosecuted for criminal aspect and be sued for civil liability. Nevertheless, the principle in
74
Smith v Selwyn appears to be that if the wrongful act is felony, no action in tort lies until

69
There might be classes of crimes that are better dealt with caution or warning rather than imposing a
punishment. This is particularly seen among child offenders or petty crimes. Also, a judge may warn or caution
a noisemaker in courtroom rather than committing the person for the offence of contempt of court.
70
Resorting to vengeance in form of ‘an eye for an eye’ may lead to a total breakdown of law and order.
71
There are categories of offences whereby the offender and the victim may reach an agreement on how to
amicably resolve the problem upon the satisfaction of the agreed payment or appropriate remedies. For
example, the siblings of a victim of a minor accident may not insist on the prosecution of the negligent driver
upon the promise that he will pay adequate compensation to the victim(s) of the accident.
72
There are Criminal Procedural Act/Law and the Criminal Procedural Code both in the South and North
Nigeria respectively.
73
Assault, false imprisonment and defamation are both crimes and civil wrongs.
74
[1914] 3.K.B.98.
 28

such a person has been prosecuted for the felony. The applicability of this principle in Nigeria
remains unsettled.75 Also, the impacts of other alternative arrangements such as

i) private settlement76,
ii) insurance77 ;and
iii) arbitration78 should be visibly noted in the context.

Private Arranging Technique

Under private arranging technique, the law provides a framework of rules which will
determine the validity of private transactions leaving it to the individual to make an option of
arranging his private affairs with the framework. The approach works mostly in the domain
of civil law.79 Examples of these approaches are:

1) entering into marriage;

2) settlement of trust; and
3) making of will.

Obviously, the decision to go into marriage with a person is entirely a personal one. This
means that generally no one can be compelled to marry. However, once one has decided to
marry, one must do so within the framework of rules stipulated by the law. An instance is that
in Nigeria a person who has contracted a statutory marriage cannot while the marriage is
continuing legally contract another marriage with any person either under the Marriage Act,
Customary law or Islamic law.80Similarly, there is freedom of choice in making a will. But
once one has made the decision to make a will one must comply with the stipulated law

75
Contrast the case of Nwankwa v Ajaegbu [1978] 2.L.R.N with Tika Tore Press Ltd v Umar [1968]2 All NLR
107 at 110 and Panthinsan v Edit [1968]2 All NLR 135
76
There might be a private arrangement where parties agree to insert a liquidated damages clause in a
contract stipulating precisely how much a defaulting party is to pay to the injured party which can save parties
the time and money for litigation if implemented.
77
The parties might decide to deal with the matter solely in terms of insurance cover especially in motor
vehicle issues.
78
Where there is an arbitration clause in a contract, it will be premature for a party to go to court without first
submitting the dispute to arbitration. The court can only intervene in a narrow confine where the award is
challenged. See Arbitration and Conciliation Act 2004
79
Civil law may include but not limited to: Contract law, Family law, Commercial law, Company Law, Trust
law and Property law.
80
The Marriage Act prohibits going through any form of customary marriage with any person (including with
one’s spouse under statutory marriage) during the subsistence of a marriage under the Marriage Act. See ss.33-
45 of Marriage Act.
 29

relating to will for it to be valid.81 It is to be noted that some aspects of private arranging
method lean towards direct control from the government.

For example, before the enactment of the Hire Purchase Act of 1965,82 the hirer in a contract
of hire purchase was under an obligation to pay the agreed instalments as at when due. If he
did not carry out this duty, the owner could put an end to hire and retake possession of the
goods even if 90-95% of the instalments had been paid.83 Currently, s.9 of the Hire Purchase
Act provides that the owner can no longer exercise his right to recover the goods from the
hirer except by an action in court if the hirer has paid 3/5 of the hire purchase price.84

The Constitutive Technique

This seems to be related to private arranging method. However, under this technique, the
government creates enabling laws that provide for a conducive and friendly environment
which helps persons to live and for an entity to transact businesses. Enabling laws include
some of the followings:

1) Law of contract- enables individuals and bodies to buy and sell, work, carryout
businesses, and any transactions within the confines of law.
85
2) Arbitrations and Conciliation Act - enables persons and bodies, to provide for
arbitration, mediation, conciliation and so forth in their contractual transactions and
dealings.
3) Law of banking – regulates banking transaction, especially, customer and banker
relationship.
86
4) Companies and Allied Matters Act - enables people to incorporate a company, or
other allied bodies to transact business or to engage in any legitimate object as a
corporate entity, and it also regulates same.

Through the constitutive technique, the law ensures social order by facilitating co-operative
action to attain a desirable social ends such as the promotion of commerce, charitable, social

81
A valid will must be in writing although no special form is required, be signed by the testator in the presence
of at least two witnesses at the same time who attest and subscribe to the will.
82
Now Cap H4 LFN 2004.
83
See Atere v Amao [1957] WRNLR], 176 and Sanyaaolu v Benthworth Finance [1972] UILR, 431.
84
Similarly, in property business, ‘land owner’ in Nigeria must now obtain the Governor’s consent before he
can assign, mortgage or otherwise alienate his interest in the land in favour of another person. See s.22 of Land
Use Act, Cap L5 LFN 2004, Laws of the Federation of Nigeria 2004.
85
Cap A.18, 2004
86
Cap C.20, 2004
 30

and cultural objectives. This is sometimes attained by conferring such a group of people or
entity with a legal personality distinct and separate from that of the individual members. In
other words, creation of new legal person is distinctive features of the constitutive technique.
The separate legal personality of incorporated bodies opens the vistas of opportunities and
advantages to the incorporated bodies.87

The principle of legal personality was established in the celebrated case of Salomon v
Salomon.88 In order to limit the liability in his business, Salomon formed a company
comprising himself, his wife and the children who were the subscribers, shareholders or
members of the company. He then sold his business to the newly incorporated company, and
gave a debenture loan to the company secured by a charge on the assets of the company.
Salomon was managing director and the sons were the directors. The company soon became
distressed and went into liquidation. The assets of the company were barely enough to satisfy
and pay off the debenture loan given by Salomon himself to the company, but the unsecured
creditors of the company got nothing. The unsecured creditors feeling cheated went to court
to seek recovery of their losses.

The House of Lords held that: A limited liability company is separate legal entity, and is a
legal person with its rights and duties different from members. The company is not an agent
of shareholders or members. The shareholders are not liable to pay off the debts of a
company beyond the amount of their shareholding where necessary, and there was no fraud
committed against the unsecured creditors.

The concept of legal personality enunciated in Salomon’s case does not entail that a
businessman can use the instrumentality of forming a company to defraud members of the
public with impunity. There was no detected fraud in this case but Salomon knew and took
advantage of secured debentures. Where fraud is detected, the court can lift the veil of
incorporation (‘crack open the corporate shell’) to investigate the directors of the company.
The principle of legal personality forms the bedrock of company law. Without the principle,
it would have been difficult, if not impossible to have large (multinational) companies as we
have it today since investors would not have been willing to bear the risk of failure which
such business might mean. On the whole, while the creation of a new legal person is the

87
An incorporated company has such advantages as: limited liability, perpetual succession, contract,
membership, public borrowing and ownership of property.
88
[1897] A.C.22.
 31

distinctive features of the constitutive technique, the law now provides a legal framework for
recognising certain collective interests of group without vesting them with legal personality.89

Administrative Regulatory Technique

Government may enact laws to establish public utilities to provide various services, and other
bodies to administer laws and regulate various sectors and activities within the state. Under
this technique, government agencies adopt regulatory standards and communicate same to
private operators and take steps to ensure compliance. The steps will usually include systems
of licensing, inspection, writing warning letters or revocation of license before the initiation
of administrative proceedings, civil litigation or a criminal prosecution when necessary as the
last resort. There are so many public utilities and administrative agencies established at the
Federal and State Government levels to provide various services, and or use law to regulate
various sectors and activities. Examples are:

a) All the Federal Government ministries and departments

b) The Laws or Acts establishing all Federal Government owned universities. For
example, the University of Abuja Act90, the University of Lagos Act.91 These Acts
permit the various universities to provide tertiary education as a service.
c) Central Bank of Nigeria Act92 - which establishes the CBN to manage the monetary
policies of the Federal Government. CBN regulates banks, insurance companies, other
financial institutions, and the financial system generally under the supervision of the
Federal Ministry of Finance.
d) Joint Admissions and Matriculation Board Act93 - which establishes JAMB to conduct
university admission examination and enforce standard in such examination.
e) National Agency for Food and Drug Administration and Control Act94 which
establishes NAFDAC to enforce and ensure safety standards for foods, drugs,
cosmetics and other consumables in Nigeria.

Administrative regulatory technique can be distinguished from the penal technique on the
ground that it is designed to regulate wholesome activities, while the penal technique is

89
Examples of such groups include: partnership, labour union, political parties and professional bodies.
90
Cap U. 2, 2004
91
Cap U.9, 2004
92
Cap C.4,2004
93
Cap J.I, 2004
94
Cap N.I, 2004
 32

meant to prohibit and sanction anti-social forms of behaviour. The Administrative –

Regulatory technique can also be distinguished from the Grievance –Remedial technique
mainly on the basis that it is designed to operate preventively. That is, before the grievance
that would necessitate the invocation of the grievance –remedial technique would arise.

Taxation -The Fiscal Technique

Taxation is the imposition of levy by government on persons, whether individuals or

corporate. It raises money for government programmes and responsibilities. Thus, tax is a
levy, duty or contribution payable by individuals, companies, and other bodies to the
government, in respect of income, goods, products, services, activities and others. The fiscal
technique has been used in the modern time to discourage certain anti-social order. For any
tax to be payable, it must be imposed by law. The evasion of tax or non-payment of a tax that
a person is under a duty to pay is unlawful. Some taxes are used to redistribute income and
bridge the widening social gap between ‘the haves’ and the ‘have nots’ in the country. In
Nigeria, the government agencies responsible for the administration of the various taxes are
the Federal Board of Inland Revenue (FBIR) and the State Board of Internal Revenue (SBIR)
at both the Federal and State respectively.95

The Conferral of Social Benefit Technique

Everywhere in the world, it is the part of the duties of government to provide infrastructures,
social amenities, and benefits to the teeming citizens. To quicken the pace of development or
rather even development and alleviate poverty, government may as a matter of policy or
urgency provide or confer necessary social amenities and utilities across the whole country
generally or in a given community or section of the country. Instead of spending all money
on the criminal justice system to fight crime, government may make effort to eliminate, or
reduce the root causes of crime by providing, social amenities to the people.96This technique
does not seek to directly regulate the conduct of the members of the society. Rather, it
recognises that if a government is not committed to improvement in the welfare of the people,
this will largely lead to certain social disharmony and disequilibrium in the society. In
essence, this may lead to general apathy, lack of patriotism and social strife. The technique

95
See Personal Income Tax Act Cap P19 LFN, 2004; Company Income Tax 2004.The Custom and Excise
Management Act Cap 84 LFN, 2004.
96
Examples include: good road, education, electricity, housing, health care services among others.
 33

therefore aims at ensuring improvement in the welfare of the members of the society in the
expectation that this will in the final analysis bring about order and peace.97

In conclusion, it is to be noted that there are instances of similarities and overlapping among
the different techniques. In some areas, a number of these techniques are complimentary
while in some cases, a choice between two alternative methods has to be made. It is possible
for law to use more than one technique to attain a particular purpose. The government has to
decide which technique or combination of techniques can achieve the set objectives.

97
Some of these government initiatives can take the form of : National Poverty Eradication Programme,
National Primary Health Care System, Niger Delta Development Commission.
 34

Part Seven: Legal Reasoning and Approach to Problems

Legalese or Language of Law

Like every other profession or human endeavour, lawyers use words and language to express
law, enacts laws, apply laws, and communicate generally in the legal profession. The
language of law has many features which include but not limited to the fact that:

i) Law uses words in their ordinary, literal or general meaning just like every other
member of public.
ii) Law uses words in a special, technical and uncommon sense. Ordinary words may
be used in technical or particular or specific sense.
iii) Law may often use verbose, circular, winding and long words and sentences,
whereas a few clear words will do.
iv) Law may use tautology or repetition or abstract terms or intangible concepts.98

Legal reasoning entails a systematic, logical, co-ordinated, convincing or persuasive thinking,

argument or presentation of points or issues relating to law. Lawyers are thought of as being
inquisitive, argumentative, probing and fond of using words not easily comprehensive to the
‘layman’. Against this background, it becomes imperative to understand in correct
perspective the reasoning approaches of lawyers, legislators, judges in the making, execution
and interpretation of laws.99 This is not usually an easy task given that every legal decision no
doubt has some implication on the rights, liabilities and obligations of the parties. The need
for legal reasoning could be for the followings:
a) to enact better laws given the need for dynamic and developing society and the world.
b) to interpret the laws better
c) to make the application of the law easy
d) to make justice accessible
e) to have better legal system for societal benefits.
There are several techniques of legal reasoning and process usually employed in the legal
profession. Some of them are:

a) Principles and Rules

b) Legal Rhetoric

98
Examples are: Rule of law, Sovereignty, Federation, Right, Remedy, and Duty among others.
99
The judicial arm of the government interprets the law- see s.4-6 of the 1999 Constitution (as amended).
 35

c) Legal Logic

d) Syllogism or Deductive Logic

e) Inductive Logic

f) Analogical Reasoning

Principles and Rules

A principle is a comprehensive legal proposition or accepted truth which furnishes a basis or

origin for the development of legal rules. Some of the well-established principles in
Constitutional law include such principles as the rule of law, separation of powers, and
supremacy of the Constitution. Where it appears that a thread of reasoning or argument is in
contrast with the established principles, such reasoning or argument may become susceptible
to legal criticisms.

On the other hand, legal rules are examples of particular application of a legal principle. For
example, the principle of natural justice has two components:

(i) a party must not be condemned without being heard. This is represented as (audi
alterem patem); and
(ii) one should not be judge in his own cause (nemo judex in causa sua).

Legal Rhetoric

Rhetoric is an art of seeking to convince or persuade another, either through the medium of
writing or speech, to accept one’s position or view. Rhetoric can be seen as an art of winning
minds with words. Serious minded law students or lawyers must continue to improve on the
mastery of language and the use of words because they are the tools for his trade. 100 Both
lawyers and judges employ different tools in their professional trade. 101 Lawyers represent
the interest of their clients and their goal therefore is to persuade the court to accept their
view points. The judge on the other hand seeks to rationalize his decision which appears to be
justifiable in the overall interests of the parties and the society.102 The main rhetoric
mechanism used in law is the appeal to authority by citing the judicial authority and statutory

100
See M.P. Golding, Legal Reasoning pp 11-17
101
Broadly speaking, lawyers use forensic rhetoric and judges use deliberate rhetoric.
102
See R. Akinjide, ‘Advocacy, Ethics and the Bar,’ (1998) 2(1)Nigerian Law and Practice Journal 123-133
 36

provisions to justify the position being canvassed.103 Legal rhetoric requires having a sound
knowledge of law and skills in the application of the legal principles. Legal skills are
acquired through academic training, post call practical experiences among others.104

Legal Logic

The importance of logic to a lawyer cannot be over-stressed. Apart from knowing the facts of
a case, lawyer should be well-grounded in logical analysis to be able to reason clearly and to
express himself with some precision. This helps him to present his thought across very
firmly. Logic teaches a lawyer to be able to detect bad argument and identify the major flaws
which can mislead the courts if they go unnoticed.

Syllogism or Deductive Logic

Syllogism is a deductive form of argument which begins from a major premise to the logical
conclusions. The conclusion majorly flows from the premise. It is a process of arguing from
the general to the particular reasoning or inferring the conclusion of a minor premise from the
major one. Syllogism constitutes deductive reasoning or deductive logic. Examples:

‘Any man who rapes a woman will be imprisoned’ (Major premise)

‘Mr Obi has raped Ada’ (Minor premise)

Therefore, ‘Mr Obi will be imprisoned’ (Conclusion).

Inductive Logic

Lawyers build a case from a particular to general or from minor to the major premise. This
form of reasoning is referred to as inductive reasoning as opposed to deductive reasoning
where the reasoning is from general proposition to the conclusion. For example: where Mr A
has through negligence caused an injury to Mr B. Mr B’s lawyer in his inductive argument
can present the case in the court thus:

(a) In the Donoghue v Stevenson, a party that suffered injury as a result of the negligence
of another person was awarded damages.

103
Statutory and judicial authorities are part of the primary sources of law while opinions, journal papers, legal
textbooks, commentaries among others are the secondary sources of law.
104
Lawyers are made by diligence, patience and application of the knowledge of legal methods. This is against
the often held assertion that ‘lawyers are born’ and ‘not made.’
 37

(b) The above case is in similar position or in all fours with the issue at hand or before the
court.
(c) Therefore, Mr A should pay damages to Mr B for causing him such injury through
negligence as a result of the above authority.

Legal Reasoning and Practical Reasoning

In deciding a case, or peacefully resolving a dispute between parties, judge does not rely on
logic alone. This is so for many reasons which include the fact that logic is not law, and law
is not logic. Unlike legal logic, practical reasoning makes frequent use of analogy and
primarily concerned with weighing various consideration before coming into a reasonable
conclusion. Therefore, a judge relies on some many factors such as:

i) the weight and probative value of evidence

ii) the laws applicable in the case and the judicial authorities
iii) the arguments of counsel
iv) theories of laws
v) whether the decision is just, reasonable or in accordance with public policy.
vi) whether it is a rational decision among others.

As can be gleaned from the above, many reasons influence a court decision one way or the
other. Therefore, it seems that in many occasions, litigation can be 50/50 to both plaintiff and
defendant that any party can win at court of first instance (High court), Court of Appeal or
Supreme Court. Though logic is a part of legal reasoning, however, it is only one of many
inputs or ingredients that determine the outcome of a case.

Legalism

Legalism is being too concerned with the details of the law or excessively applying the law
instead of following the spirit of law, and doing and fulfilling the purpose of the law, which is
to do justice.105 In order to overcome the excessive reliance on formality or problem of
legalism or too much application of the rules of law, the principles of equity are usually
applied.106

105
Legalism means the strict application of law without sometimes ensuring the consideration of justice in the
circumstance.
106
‘Equity does not suffer a wrong without remedy’; ‘Equity looks to the intent rather than the form’; ‘Equity
looks on that as done that which ought to be done.’
 38

Part Eight: Legal Reasoning in Legislation

Law may be made through many bodies including ministries, local government councils,
government institutions such as corporations, universities among others. Strictly speaking,
legislation is a law made by the primary law making body whose major task is to make
law.107

Reasons for Legislation

Legislations are formal and express promulgation or declaration of legal rules, proscriptions
and or directions into statutes in the fields or subjects to which they relate. Legislation is
majorly initiated as a result of the demands and suggestions of the citizens, interests groups, a
community, private persons or governmental institutions or departments in form of proposals
to legislature or relevant government department. Some of the reasons for the legislative
making will be considered hereunder.

The Dynamic Nature of the Society

Naturally, human beings are dynamic and this is why law must keep changing in keeping
with the current realities. As society progresses and embraces new attitudes, values and ideas,
its legal system must accord with changing attitudes, values and ideas to be relevant. It is on
record that many of the practices previously adhered to have been abandoned on the basis
that they are now repugnant to natural justice, equity and good conscience or incompatible
with any law then in force.108 In some cases, new legislations have been put in place to
encourage the people to move along with the changes in society. For example, government
may come up with a new law to regulate the indiscriminate dumping of refuse and wastes in
public places.109

Shift in Political and Economic Ideologies of Government

Law can be seen as an instrument of political, social or economic change. This could mean
that each time the mantle of leadership changes in a country, political goals and ideologies
change, and changes in law will invariably be unavoidable. It has been argued that ‘a change
of government must bring new changes in the law because a new government wants to aim in
107
S. 4(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides thus: The
legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the
Federation…’’
108
See Edet v Essien (1932) 11 NLR.
109
For example, consider the abolition of the Osu Caste system in the Eastern part of Nigeria by law.
 39

different directions’.110 Similarly, when the military topples a ruling government, there is
likely to be an abrogation or suspension of certain laws so as to promulgate new ones which
establishes legal order thereby ushering in new policies and directions of government.

Global Changes in Value System

Legislation may be made to embrace community as well as global shift in value systems and
incorporate international standards in certain areas of our local law. There are legislations
now in Nigeria emphasising on women’s rights and rights of children, environment, as well
as other enactments reflecting international shifts on value systems. A number of these
changes are attributable to the country being a signatory to several global organisations and
Non-governmental Organisation (NGO) with international link.

Scientific and Technological Breakthroughs

New proposals have been made to cope with the scientific and technological breakthrough so
as to maintain law and order in the society. For example, the arrival of satellite
communication and the use of computers have made access to information worldwide easy
by merely touching the button. Also, this comes with problems given the ensuing rights,
duties and liabilities relating to online contracts and transactions. Given this development,
information and internet (cyber) law has been enacted to address the developing trends in this
direction globally.

Arrest of Anti-Social Behaviour

Governments through the legal process exist to maintain order in the society including to
provide and safeguard life, property and security of the populace. Legislation may be made
to arrest deplorable, reckless or anti-social behaviours or practices of the people. Such
behaviour may be injurious to the interest of the citizens or the global image of the country.
For example, Advanced Fee Fraud Decree was enacted so as to arrest the menace of the
crime of obtaining money under false pretences popularly known as ‘419.’111 Furthermore, on
a request of a government agency legislation can be enacted to checkmate some activities.112

110
P.S. Atiyah, Law and Modern Society, Oxford University Press, 1983 (1992-Reprint) P.116
111
See Money Laundering Act 2004; see Corrupt Practices and Other Related Offences Act Cap C31 LFN 2004
which provides for a law to prohibit and prescribe punishment for corrupt practices and other related
offences.
112
The Petroleum Ministry, as a government department, may request that laws be made to control illegal
dealings in petroleum products or vandalisation of fuel pipelines.
 40

Legislative Proposal

In major democracies around the world, legislative proposal (bill) involving specific issues
are articulated, aggregated and tabled before the legislative house or houses in the form of
memoranda or bills where they undergo certain processes and critical analysis before they
can become Laws or Acts of Parliament. Legislative proposals are normally expressed in
memoranda handed to government or any of its relevant department or agency or directly to
the legislature or its relevant Committee or the Law Reform Commission.113 The proposal
may reflect position of things with respect to the subject matter and specify the anomalies or
problems arising from it.

Legislation as found in the rule books is the finished products of what began as proposals but
has gone through certain formal processes in its stages into law. Legislative proposal matures
into bills from where the intricate legislative procedures are deliberated. Bills are required to
be articulate, well-prepared and exhaustive statement of what is expected to be passed by
parliament and assented by the president. The drafting of bill remains a serious business of
which a specialist usually a government employee in the field or in private practice is
engaged.

Legislative Drafting

Legislative drafting is an art. As a prelude to drafting process, the draftsman usually obtains a
comprehensive instruction from his client and he must produce a bill which substantially
complies with his instructions. Given the seriousness it requires, the draftsman must have a
natural flair for such a job. The draftsman must be high on intelligence and very articulate in
his career. He must possess imaginative, analytical and careful abilities. He should be
amenable to corrections, suggestions and criticisms. The major features of good legislative
drafting include:

i) economy of words;
ii) direct and explicit expression;
iii) orderliness;
iv) consistency of terms,
v) use of connecting terms;

113
Legislative proposals may also be contained in opinions expressed in the electronic and print media or may
be channelled through concerned professional, socio-cultural, economic, political and such other pressure
groups.
 41

vi) definitive words,

vii) good punctuation,
viii) marginal notes,114
ix) schedules115 ;
x) technical design and structure.116

The draftsman should pay attention to issues on ambiguity, vagueness and open texture
among others. While the draftsman may have these issues in mind, it is sometimes hard for a
drafted legislation to be entirely free from one of these problems.117

Legislative process

Legislation begins from being a proposal which may commence from private individuals or
groups and processed through their representative in parliament or appropriate house
committee on the subject matter of the proposal. It may also be introduced by the executive
or any of its agencies. Under the 1999 Constitution of the Federal Republic of Nigeria, the
country operates a bi-cameral legislature at the federal level consisting of both a Senate and
House of Representatives, which collectively make up the National Assembly.118

Bill making commences with the introduction of the bill in the House where it originated
after it must have been presented in line with the House Rules. The bill goes to first reading
in the whole House through the Clerk of the House or such designated person. At this stage,
the introduction is just to inform the legislators with the subject matter of the proposed law as
it is not subjected to any question yet. Thereafter, a date is fixed for second reading. The
general principles and imports of the bill are deliberated and questions are raised in second
reading. Changes may be proposed before it is forwarded to relevant Standing Committee for

114
Marginal notes direct the attention of places or clauses sought in statutes more like bookmark for ease of
reference in a statute that may run into volume of pages.
115
Schedules are also to be used for more elaborate technical or more explicit information, which could not
conveniently be included in the main text of the legislation.
116
A good technical design is necessary for the good of legislation. Some of these designs include: Preliminary
parts (long title), principal parts (administrative and enforcement provisions), final parts (savings, repeals and
interpretations sections).
117
Statutes are supposed to control human conduct and affairs which are seriously incapable of accurate
prediction, provision must therefore be made for future settlement of issues when they arise, the provision is
made by building some flexibility into the statute. The flexibility or open texture style may lead to some
measure of vagueness but permissible in some areas.
118
See the 1999 Constitution (as amended), s.47.
 42

comprehensive debate and detail consideration. The National Assembly sit119 separately and
each has a Committee system by which members are divided into different Committees120 on
different subject matters where they have a measure of knowledge and special interest. A
more drastic amendment is seen at this stage given that the bill may be examined clause by
clause and sometimes word by word in order to make the changes to be more acceptable.
Report stage follows where it is further scrutinised. The success or failure of the bill would
have been made very clearer at this stage. Thereafter, the bill is read for the third reading and
last time in its drafting form. Simple majority or two- third majority is required for the
passage of the bill before being sent to the president for his assent. If vetoed by the president,
it can still become a law if it is re-passed by a two-third majority votes of the legislative
Houses after which it automatically becomes a law without the need for the assent of the
president.121

Types of legislation

 Public General Act – this applies to everyone. Examples are: Criminal law, Copyright
law.
 Local Act – this applies to specific community. Example: imposing a curfew or state
of emergency in any part of the Federation or State.
 Private Act – this is limited to a particular application or a specified persons or body
of persons. Example can be seen where a State pardons a convicted person or seizure
of property.
 Consolidating Act – this is newly passed statute which re-enacts the content of earlier
or related statutes with which such modification, additions and or alterations as are
needed to serve a particular purpose so as to produce a coherent whole.
 A Code – this is a statute which strives to put together in one document the provisions
of the existing legislations. Examples include: Criminal code and CAMA 2004.

Semantics in Law

The issue of semantics or language in law and the preoccupation of lawyers with words stem
from the fact that many legal disputes are due to the language imperfections. In other words,
some words generally and legal words in particular not only have multiple meanings, but

119
Except in cases of non-concurrence of the two Houses over a money bill when a joint committee of the two
Houses on finance sit together or indeed the entire National Assembly. See ss.59 (1), 2 & (3) 1999 CFRN.
120
S.62 of the 1999 Constitution.
121
See S.58(1) (3) (4) and (5) and 59 (3) (4) 1999 CFRN (as amended).
 43

have also changed their meanings as time progresses. Such words include ‘rights,’ ‘property’,
‘fair’, ‘consent’ among others. The use of such words in law especially in drafting could lead
to vagueness, ambiguity or equivocation. Effort may be made to reduce the complexity of the
language by providing and Interpretation Clause.122

Construction of Statutes

In the course of carrying out its constitutional duties, courts are frequently asked to interpret
documents, construe the meaning of statute and determine the liabilities, rights, duties and
obligations of parties in a suit whether civil or criminal. Statutes are not always very clear in
its meaning given the intention of the legislature. The task of discovering the intention of the
legislature as contained in the statute in order to give effect to it is not usually an easy one.123
Some examples of interpretations are noted:

The Literal rule

Under this rule, the intention of the law must be given on its face and as it appears. It requires
that words are given their ordinary meaning at the time of enactment. The courts must apply
the natural, ordinary or literal meaning of the words. The approach is called ‘Plain meaning
rule or Literal rule.124 There is a presumption in this rule that words do have ordinary, natural
and literal meaning. Nevertheless, this appears to be the major problem of this sort of
interpretation. It may lead to inconvenient or absurd conclusions. This was the position in a
landmark case of Chief Obafemi Awolowo v Alhaji Shehu Shagari and Ors125 where justices
of the Supreme Court of Nigeria after adopting the literal rule of interpretation reached
opposing conclusions.126It is argued that the canon is mainly important if using it does not
lead to absurdity, which the parliament could not have intended.

The Golden Rule

The golden rule means that where the literal meaning of words will lead to an absurd result,
the court should adopt an interpretation that avoids the absurdity. It means that statute should
be interpreted to avoid absurdity. This is merely an extension of the literal rule. Where for

122
S.318 of 1999 CFRN (as amended) provides interpretations of some key words and expressions and defines
their context as used in the constitution. There is also interpretation Act to fall back on where a particular
statute does not provide its own definitions.
123
See s.6 (6) (b) 1999 CFRN (as amended).
124
R.M. Dias, Jurisprudence, 5th Ed, London: Butterworths, 1985, p.171
125
(1979) 6-9 S.C 51.
126
See Adegbenro v Akintola (1962) 1 All NLR 465.
 44

instance, a provision is capable of more than one meaning, the golden rule enables a judge to
adopt a meaning which will avoid absurdity. In R v Princewill,127 the defendant who was
married under the Marriage Act, went and contracted a marriage with another woman, whilst
his first marriage was not dissolved. On being charged with bigamy, it was argued that the
second marriage was not a ‘marriage’ within the Marriage Act to render it an offence. The
court in order to avoid ambiguity, applied the golden rule and held: that the word ‘marries’ in
s.6 of Criminal Code Act was not to be interpreted as contracting a valid marriage, but going
through any form of marriage, whilst the earlier marriage under the Act is subsisting and has
not been dissolved. Some of the merits of the golden rule include that:

a) It enables court to avoid absurdity by adopting an interpretation that will promote the
intention of parliament, law and order.
b) It enables court to adopt a reasonable and sensible interpretation where a literal
interpretation will lead to absurdity.
c) It enables court on grounds of absurdity, unreasonableness, inexpediency, injustice,
immorality and so forth to adopt an interpretation that will promote justice, law and
order. In Re Sigsworth,128 the deceased, Mary Ann Sigsworth was murdered by her
son. The issue was whether the son was entitled to her estate as a child of the
deceased under the Act. The learned trial judge interpreting the intestacy law held:
that the son, being the killer cannot inherit his victim’s will. This is in keeping with
the wills law and the general principle of common law, that a person cannot bring an
action to benefit based on his own wrong.129 The judge in this case read the statute as
subject to certain fundamental principles or rules of justice which exist in the common
law or general body of law.130
d) It enables court to correct a statute, in order to bring out and reflect the intention of
parliament and do justice without having to wait for parliament to reform the statute.

However, when the golden rule is abused:

(i) It makes court to depart from clear words of statute, on ground of supposed
ambiguity

127
(1963) All NLR 478. See also The Council of the University of Ibadan v Ademolekun (1967) All NLR 225;
Awolowo v Federal Minister of Internal Affairs (1962) LLR 177.
128
(1935) Ch.89. See White v Chapple (1868-9) 4 LR QB 147
129
This is expressed in Latin maxim: ‘Ex turpi causa non oritur action.
130
See the English Intestate Act of 1952.
 45

(ii) It makes court to correct statutes and thereby usurp parliament’s duty to amend
law.
(iii) It makes court go on journey of discovery, in a bid to find the meaning of statute.

The Mischief Rule

The mischief rule means that a statute should be interpreted to deal with the mischief it was
enacted to cure. This requires that the judge should look at a statute to see the intention of the
parliament and interpret it to remedy the wrong in society that it was meant to correct. Under
this rule, a court will examine a statute to see what is the intention or purpose and what
mischief, wrong, evil, problem, or weakness, in the former law or society, that the statute was
enacted or intended to cure, and then interpret it to prevent the mischief. Thus, where a
statute has been enacted to remedy a mischief or wrong, the interpretation which will remedy
that mischief is the one to be adopted by court. The principle was formulated in Heydon’s131
case by Lord Coke. In Smith v Hughes,132 the issue was whether commercial sex workers or
prostitutes who were attracting the attention of passerby on a street, from balconies and
windows were soliciting for customers ‘on a street’ under the provisions of the Street Offence
Act 1959 England. Lord Parker CJ applying the mischief rule of interpretation bore in mind
that mischief which the statute was enacted to remedy was to clean up the streets so that
people can move on the street without molestation and solicitation from prostitutes and held
that: ‘in a street’ included solicitation in balconies and windows.

Some of the merits of mischief rule of interpretation are that:

a) It enables court to extend the law to catch law breakers and otherwise do justice by
adopting a meaning that will remedy or cure mischief, crime or wrong in society
b) It enables judges to express their own opinions as to social policy
c) It is a platform for judicial activism, progress and development of case law by
enabling court to fashion out or interpret the law to suppress mischief in the interest of
the society.
d) It enables the judges to make courts a place to find justice even though law is not
synonymous with justice.
e) It helps judges to suppress mischief and advance a remedy.

131
(1584) 76 ER 638
132
(1960) 1WLR 830
 46

The issues with the mischief rule are that:

i) It throws open the floodgates for individual opinion, bias and guesswork and gives
room to court to have regard to extraneous consideration which are not in the
words of statute in reaching a decision.
ii) It makes courts to restate the law in order to block gaps and loopholes thereby
usurping the duty of parliament to amend the law and make itself clear;
iii) The power of court to apply the mischief rule creates room for uncertainty.

Apart from the main rules or cannons of interpretation above, other rules of interpretations
have been evolved to help judges in interpreting statutes.

A statute must be read as a whole

A statute must be read as a whole in order to find out and understand parliament’s intentions
as expressed in the statute. The words, clauses, and provisions of a statute must not be picked
and read in isolation from the whole statute. Therefore, a statute must be read together as a
whole in order to be able to apply it with justice. This reduces the occasion for miscarriage of
justice. Where the provisions of a statute are selectively read and applied in isolation, the
likelihood of occasioning unnecessary and avoidable miscarriage of justice and anguish to
people will be very high.133

Ejusdem Generis Rule

This is a rule of interpretation covering things of the same nature, specie or kind. Therefore,
where general words follow particular words, the general words are to be interpreted as being
limited to persons, things or situations within the class specified by the particular words.
Thus, where a statute for instance refers to ‘dogs, goats, cats and other animals’ the last three
words ‘and other animals’ are to be interpreted or construed, as limited in their application or
reference to domestic animals. Thus, the last three words will not be stretched to include
animals which are not domestic in nature.

Noscitur A Sociis or The Context Rule

This phrase entails that the meaning of a word can be gathered from the context. Therefore,
words are to be read and interpreted from the context in which they have been used, thus, any

133
See A.G Bendel v A.G Federation & 22 Ors (1982) 3 NCLR 1 SC.
 47

section or provision which is being interpreted must be read as a whole. Where a particular
provision is not entirely clear all relevant provisions should be read as whole.

Codification

A code is a specie of statute which strives to sum up the provisions of the existing legislation,
the principles of common law and the doctrine of equity on a particular subject to a single
whole. The code is viewed as detailed compilation of applicable laws blended and aligned
with the practices, custom, the common law and rules of equity in a particular field of
endeavour. It is thought that codification will pull together in one source what is to be
reckoned as law on a particular matter. How practicable this can be attained remains
questionable. Proponents have argued that having all laws in single code will offer reasonable
certainty for reference and easy application. Codification has been suggested in Nigeria for
the various systems of customary and native laws in order to articulate and reconcile the
differences so as to reflect the common practices of the people of Nigeria or some part of it.
Such code will have the effect of legislation in whatever field the customary law relates to.

Von Savigny, one of the eminent advocates of historical law school, contended against
codification given that the growth of law should be evolutionary rather than revolutionary
which is the hallmark of codification. His argument is that a code cannot be made to provide
in advance for all future cases and it is needless to be legislated in view of the fact that
legislation will still be made from time to time to cover new situations.

Codification was further criticised on the basis that it destroys the continuity in legal
development. The argument is that customary law is flexible and a mirror to accepted usage.
It is adaptable to changed situation without losing its character. Similarly, it permits changes
to reflect changing social, economic and cultural conditions. These notable qualities will be
lost if customary law were to be codified in addition to losing its validity.

Despite these laudable arguments against codification, it can still be contended that
codification brings in several loose ends and it has the potential to remove some overlapping
provisions in different sources of law on a particular field. It may not be in a comprehensive
level as codification is strictly understood to mean but to such an extent that undue
duplication or contradiction in different provisions of the law with respect to same field or
subject can be substantially reduced even if not completely eliminated.
 48

Moreover, codification simplifies the works of the judges as much of the uncertainty and
confusion about the applicable laws would have been settled in the code. But it is understood
that the code cannot always anticipate varieties of circumstances in which it will have to be
used.

On the whole, codification encourages reform as obsolete provisions will be removed in the
course of codification, while the code will take cognizance of the developments in the area of
law being codified. Parliament may be mandated to review the Codes from time to time, say
in every ten to twenty years to keep it abreast of legal developments or to make it conform to
changes in values, philosophy or beliefs of the people to which it relates. However, law is an
immensely complex social machine. It is continually in need of patching, repairing and from
time to time overhauling in this or that area. Much of the repair and patching goes on from
time to time. Similarly, judges will merely be authoritative interpreters of the code if laws
were codified given that codification could restrict the inputs of the judges in advancement of
case-law by limiting the intellectual contributions of individual judges in expounding the law.
 49

Part-Nine: Doctrine of Judicial Precedent-Principles and Rules of Law

Judicial Precedent

The doctrine of judicial precedent also known as stare decisis means that a decision of a
judge once given on a question of law binds both the judge himself and subsequently judges
in a court of lower rank to decide the same question of law in the same way. Judicial
precedent as a doctrine emanated from case law. At common law, even before adequate
statute for the regulation of activities of man were made, judges through their decisions in
cases were already formulating principles and rules of law.

Common law is a law established by particular cases, as compared to law that uses statutes as
its guide. If a statute or written law is followed in a case, a judge will make his decision based
on an interpretation of that statute. However, in common law, judges determine cases based
on the particular facts and circumstances in the dispute. A judge can look to prior decisions
when making a determination. These prior decisions are called precedent.

Stare decisis is a doctrine of common law. It is the following of precedents. Under this, a
judge must look to prior decisions that are similar and base his decisions on the precedent. If
a judge fails to follow prior decisions in a similar matter, his decision is likely to be
overturned later. Conversely, where cases do not have any precedent, they are called ‘cases
of first impression’. Judicial precedent originates from the principle of stare decisis - ‘let the
decision stand’. It means similar cases must be treated alike for uniformity and certainty.
Court decisions based on the material facts of a case are called judicial precedent, also, stare
decisis or case law. It means the principle of law upon which a judicial decision is made.

Judicial precedent could either be binding or persuasive. They are binding when they are
given or made by a court of higher rank and all courts of lower rank must follow the
reasoning inherent in such decision. They are said to be persuasive when they are given by a
court of concurrent or co-ordinate jurisdiction. For example, the decision of a State High
Court remains persuasive and not a binding precedent for other State High Courts. Similarly,
foreign judgements are persuasive precedents in Nigerian courts.

Furthermore, can it then be said that judges make law? Yes. Judge-made law or case laws are
laws developed by the courts and become binding according to the principle of stare decisis
or judicial precedent. However, their law is not legislation because it was not passed by the
primary law making body which is the National Assembly.
 50

Original precedent means the rule given by the judge in a new decision in which there are
no previous similar cases. A judge does this by comparing and combining related principles
to formulate a new rule where none previously exists. The new rule or principle becomes the
new law. An example is the case of Carlill v Carbolic Smoke Ball Co134 where an original
precedent as related to offer was established.

Derivative precedent is where the case at hand simply extends the existing rule analogically
to cover a new situation. Declaratory Precedent means the law simply declares the existing
rules. What it does is to re-echo the existing rule to what is on ground.

Ratio Decidendi

It should be stated that not all aspects of a judgement is relevant in determining the principle
decided in a case. It is the ratio decidendi that is relevant in determining the judicial
precedent.135 In other words, ratio decidendi is the precedent for later judgement. That is, the
‘reason for the decision’. It is the legal principle upon which the decision is based or a rule
without which a court would not have reached its decision.

It is sometimes hard to find the ratio of a case determined by the court consisting of more
than one judge. Where the majority judgements are consistent with one another and they are
based on the same legal principle, that principle is the ratio decidendi of the case. In the case
where the majority agrees in the result but such judgement is inconsistent with one another, it
is difficult to determine the ratio decidendi since there is no majority in support of any
grounds of the decision. Both Cross136 and Obilade137 suggest that a proposition of law which
is not supported by the majority and which is actually rejected by the majority should not be
considered as the ratio decidendi. In essence, such case should not be cited as a binding
authority for any proposition.

Obiter Dictum

Black’s Law Dictionary138 defines obiter dictum as ‘words of an opinion entirely unnecessary
for the decision of a case. A remark made or opinion expressed, by a judge, in his decision
upon a case, ‘by the way’ that is, incidentally or collaterally, and not directly upon the

134
[1893] QB 256
135
But the other parts of the judgement are not useless. Other parts are called obiter dictum. An obiter dictum is
not a present judgement, in a later case, it can be adopted as a ratio decidendi.
136
R. Cross, Precedent in English Law, 3rd ed, Oxford: Clarendon Press, 1977 pp-31-32
137
A. Obilade, The Nigerian Legal System, Spectrum Law Publishing, 1990 P.113
138
See Black’s Law Dictionary, 7th ed, Minn , West Group, St Paul, 1991.
 51

question before him or upon a point not necessarily involved in the determination of the case,
or introduced by way of illustration, or analogy or argument’. The weight attached to obiter
dictum depends on the hierarchy of court within the judicial system that the obiter dictum was
made and the level of respect such judge commands. Where the obiter is made by the
Supreme Court, in order to settle a state of law in a particular field, such statement should be
taken as superior specie of obiter dictum and are likely to be followed by the lower court
though not necessarily binding.

Per incuriam Judgement

Per Incuriam judgement means ‘a decision reached without a careful consideration’. That is,
where a judgement was wrongly decided. Per incuriam judgement occurs where a relevant
statute or rule which would have had effect on the decision was not brought to the attention
of the earlier court and the earlier court’s judge failed to address his mind to such statute or
rule of law in keeping with the general principle that the judge is presumed to know the law.
No court is strictly bound to follow a decision of its own if it is satisfied that it has given the
decision per incuriam. A lower court is bound to follow the decision of a higher court even
though such decision was reached per incuriam.139 However, the Court of Appeal is not
bound to follow a previous decision of its own if it is satisfied that the decision was given per
incuriam (wrongly decided).140

Distinguishing Cases

The decision of a court in a case is not a binding precedent for any court in any subsequent
case if the cases are different from each other in terms of material facts. Where such
differences exist, instead of following erroneously or refusing to follow an earlier case, the
court may distinguish it. Distinguishing a case means pointing out an essential difference
between the present case and the earlier one. Such difference is mostly of facts and not of
law. Distinguishing cases require more than just identifying factual differences. It involves
using it as a basis for departing from the ruling in the earlier case.141

139
See Board of Customs and Excise v Bolarinwa (1973) 1 NMLR 179
140
See Young v British Aeroplane Co Ltd (1944) K.B.718; Adeline Njideka Megwalu v Justin Obidi Megwalu
[1996] 2NWLR (pt.428) 104.
141
This can be on the basis of morality, social policy, political expediency or common sense.
 52

Part-Ten: Selected Tutorial Questions

1. Critically examine the various theories of law. Which of them would you consider to be
better view? And Why?
2. Define legal methods and examine its scope and concerns.
3. What is the role and functions of law in society?
4. Compare and Contrast the followings:
(a) The Command Theory and the Pure Theory of Law
(b) Sociological School and Historical School
(c) Natural Law and Command theory
(d) Functional School and Realists
5. Distinguishing in practice between one classification of law and another may not be as
clear-cut as it may appear in theory. Hence, the various classifications should be the
lawyer’s servants and not his masters. Discuss.
6. Emeka, a cashier to Omenka Co-operative Society defrauded the Society of a huge sum
of money. Emeka who was a first offender immediately tendered the money at the police
station and begged for forgiveness. The prosecutor who was moved by Emeka’s show of
remorse advised the Chairman of the Society who came to report the case to drop the
charges. The Chairman however insisted on the prosecution saying that the stolen money
belonged to the Society and that the Executive Committee had resolved to press case to a
logical conclusion. Advise the parties.
7. Unlike the penal technique, the grievance remedial technique appears to have a viable
alternative option that may be ultimately be beneficial and invaluable to both parties and
the society. Discuss
8. Examine the various means by which society is regulated.
9. Examine the relevance of legal reasoning, in the legal process and court decisions.
10. Write short notes on the followings: (i) Per incuriam (ii) Obiter Dictum (iii) Stare decisis
(iv) Distinguishing of cases.
11. The Chairman of Nkanu West Local Government Council thinks that a graduate of any
discipline in Arts and Humanities field is competent to fill the Council’s position of a
legislative draftsman. Advise him in your opinion about the features of a good legislative
draftsman.
12. Discuss any two general principles of interpretation adopted by the Courts in statutory
interpretation and assess their merits and demerits generally.
13. Codification benefits neither the law nor the people. Do you agree?
 53

Selected Reading Materials

Farrar; J; and Dugdale; A, Introduction to Legal Method: London, Sweet & Maxwell, 1990.

Malemi; E, The Nigerian Legal Method, 2nd ed, Lagos, Princeton Publishing Co, 2012.

Obilade; A, Nigerian Legal System, Ibadan: Spectrum Law Publishing, 1990.

Ogbu; O, Modern Nigerian Legal System: Enugu, CIDJAP Press, 2007.

Sanni; A, Introduction to Nigerian Legal Method, 2nd ed, Ife: Obafemi Awolowo University
Press, 2006.

Williams G: Learning the Law: London: Sweet & Maxwell, 2011