Nls Handbook (Reviewed 2023) - 1

DRAFT
COURSE HANDBOOK
ON
NIGERIAN LEGAL SYSTEM

(BAR PART 1 AND SPECIAL REMEDIAL PROGRAMMES)
(2023 EDITION)
COUNCIL OF LEGAL EDUCATION
NIGERIAN LAW SCHOOL

Edited by:
Prof. Isa Hayatu Chiroma, SAN
Director-General
NLS
Course Lecturers (2022/2023 Session)
1. P.C.Okorie
Director (Academics)
NLS, Abuja
2. S.M.Rilwanu
Senior Lecturer
NLS, Abuja
3. N. D. Dashe
Lecturer 1
NLS, Abuja
M. E. Udowoima
Assistant Lecturer
NLS, Abuja
NIGERIAN LEGAL SYSTEM
COURSE HANDBOOK
TABLE OF CONTENTS
PART ONE: INTRODUCTION
CHAPTER 1-THE IDEA OF A LEGAL SYSTEM -R. SALMAN

1.1 Meaning of Legal system
1.2 Nature of Nigerian Legal System
1.2.1 Duality of Structure
1.2.2 Nature of Administration of Justice
1.2.3 Nature of Judicial Set-up
1.2.4 Nature of Legal Profession
1.2.5 System of Precedents
1.2.6 Military Influence
1.3 Nature and functions of law
1.4 Classification of law
1.4.1 Criminal Law and Civil Law
1.4.2 Private Law and Public Law
1.4.3 Civil Law and Common Law
1.4.4 Municipal Law and International Law
1.4.5 Substantive Law and Procedural or Adjectival Law
1.4.6 Customary Law and Non-customary Law

PART TWO: SOURCES OF NIGERIAN LAW
CHAPTER 2 - ENGLISH LAW –S.M.RILWANU
2.1 Extended English Law
2.2 Received English Law
2.2.1 Common Law
2.2.2 Doctrines of Equity
2.2.3 Statutes of General Application
2.2.4 Survey of the Applicable English Statutes in Nigerian Today
CHAPTER 3-NIGERIAN LEGISLATION -P.C.OKORIE
3.1 Meaning of Legislation
3.2 Types of Legislation
3.2.1 Statutes (Constitution, Ordinance, Act, Decree, Law, Edict)
3.2.2 Subsidiary Legislation (Rules, Regulations, Practice Directions, Orders)
3.3 Some Terminologies used in relation to Nigerian Legislation
3.3.1 Principal statute
3.3.2 Enabling statute
3.3.3 Amendment statutes
3.3.4 Repeal statute
3.3.5 Re-enactment statute
3.4 Nature and Purpose of Legislation
3.5 Hierarchy of Laws in Nigeria
3.6 The Authorities that enact Nigerian Legislation-
3.6.1 Under Military Administration
3.6.2 Under civilian administration

3.7 Parts of a Statute
3.7.1 Long Title
3.7.2 Short Title
3.7.3 Preamble
3.7.4 Commencement
3.7.5 Marginal/ Side Note
3.7.6 Schedule
3.7.7 Interpretation
3.8 Canons of Interpretation of a Statute
3.8.1 Literal Rule
3.8.2 Golden Rule
3.8.3 Mischief Rule
3.8.4 Ejusdem Generis Rule
3.8.5 Purposive Approach
CHAPTER 4 - CUSTOMARY LAW -P.C.OKORIE
4.1 Meaning of Customary Law
4.2 Characteristics of Customary Law
4.3 Establishing Customary Law (In Customary and Non Customary Courts)
4.3.1 By Proof
4.3.2 By Judicial Notice
4.4 Validity of Customary Law
4.4.1 The Repugnancy Test
4.4.2 Incompatibility Test
4.4.3 Public Policy Test
CHAPTER 5 – ISLAMIC LAW- S.M.RILWANU

5.1 Meaning of Islamic Law
5.2 Sources of Islamic Law:
5.2.1 Qur’an
5.2.2 Hadith/Sunnah
5.2.3 Ijmaa
5.2.4 Qiyas
5.3 Schools of thought under Islamic Law
5.3.1 Maliki School
5.3.2 Hannafi School
5.3.3 Shafii School
5.3.4 Hambali School
5.4 Application of Islamic Law/School of thought in Nigeria
CHAPTER 6 - JUDICIAL PRECEDENT-C.U.MMUOZOBA
6.1 Meaning and Application of the Doctrine of Judicial Precedent (Stare Decisis)
6.2 Types of Precedent
6.2.1 Binding Precedent
6.2.2 Persuasive Precedent
6.3 Advantages of the Doctrine of Stare Decisis
6.4 Disadvantages of the Doctrine of Stare Decisis
6.5 Res Judicata
6.6 Differences between Res Judicata and Stare Decisis
6.7 Courts to which the doctrine of judicial precedent does not apply
6.8 The doctrine of Judicial Precedent and the hierarchy of Courts
6.8.1 Supreme Court

6.8.2 Court of Appeal
6.8.3 High Courts (Federal and State)
6.8.4 Magistrates/District Courts
6.8.5 Customary/Area Courts
6.8.6 Sharia Courts
6.9 Applicability of English Courts decision/Foreign decisions in Nigerian Courts
6.10 Position of works of Academics and Textbook writers
6.11 Position of International Treaties
CHAPTER 7 - INTERNAL CONFLICT OF LAWS-C.U.MMUOZOBA
7.1 Meaning of Internal Conflict of Law
7.2 Conflict between English Law and Customary Law
7.2.1 Cases of Disputes between Natives
7.2.2 Cases of Dispute between Non-Natives
7.2.3 Cases of Disputes between Natives and Non-Natives
7.3 Conflict Between different Systems of Customary Law
PART THREE: THE JUDICIARY AND JUDICIAL INSTITUTIONS
CHAPTER 8- JUDICIAL INSTITUTIONS AND MODERN SYSTEM OF COURTS IN

NIGERIA- S.M.RILWANU
8.1 The role of the Judiciary
8.2 The History and Development of Courts
8.3 Establishment, Composition, and Jurisdiction of Courts.
8.3.1 Supreme Court of Nigeria

8.3.3 Federal High Court
8.3.4 National Industrial Court
8.3.5 High Court of the FCT/ States
8.3.6 Customary Court of Appeal of FCT/States
8.3.7 Sharia Court of Appeal of FCT/States
8.3.8 Electoral Tribunals
8.3.9 Code of Conduct Tribunal
8.3.10 Court Martial
8.3.11 ECOWAS Court
8.4 Appointment and Tenure of Judicial Personnel
PART FOUR: LEGAL EDUCATION, LEGAL PROFESSION AND LEGAL AID
CHAPTER 9- ORGANIZATION OF LEGAL EDUCATION IN NIGERIA-(DR) (MRS)

N.CHIOKE
9.1 Nature of Legal Education in Nigeria
9.2 The regulatory and supervisory bodies for Legal Education in Nigeria (Establishment and
Functions)
9.2.1 Council of Legal Education
9.2.2 Body of Benchers
9.2.3 National Universities Commission
CHAPTER 10- ORGANIZATION OF THE LEGAL PROFESSION IN NIGERIA-DR

(MRS) N.CHIOKE
10.1 Right to Practice in Nigeria

10.2 The regulatory and supervisory bodies for the Legal Profession in Nigeria (Establishment
and Functions)
10.2.1 Nigerian Bar Association
10.2.2 General Council of The Bar
10.2.4 Legal Practitioners Privileges Committee
10.2.5 Legal Practitioners Disciplinary Committee
10.3.6 Legal Practitioners Remuneration Committee
CHAPTER 11-LEGAL AID AND ADVICE-T.A.YUSUF
11.1 Meaning and Importance of Legal Aid
11.2 Legal Framework for Provision of Legal Aid in Nigeria (Constitution, ACJA/ACJL, Legal
Aid Act, Civil Procedure Rules of Court)
11.3 Institutions Concerned with Provision of Legal Aid in Nigeria
11.3.1 Legal Aid Council of Nigeria
11.3.2 Office of Public Defender of Ministries of Justice
11.3.3 Human Rights Commission
11.3.4 Non-Governmental Organizations
PART FIVE: EXECUTIVE ORGANS FOR ADMINISTRATION OF JUSTICE
CHAPTER 12-EXECUTIVE INSTITUTIONS/BODIES CONNECTED WITH

ADMINISTRATION OF JUSTICE IN THE NIGERIAN LEGAL SYSTEM-T.A.YUSUF
12.1 Relevant Institutions (Enumeration of Institutions under the following and broad/general
discussion of their role in Administration of Justice)
12.1.1 Institutions involved in Law Enforcement and Prosecution
12.1.2 Ministries of Justice and Affiliated institution

12.1.3 Judiciary and Affiliated Institution
12.2 Establishment and functions of specific Institutions for administration of Justice
12.2. 1 Office of the Attorney-General of the Federation
12.2.2 The Nigeria Police Force
12.2.3 Nigerian Correctional Service
PART SIX: LAW REFORM AND DEVELOPMENT
CHAPTER 13-DEVELOPMENT AND FUTURE OF LAW IN NIGERIA-P.C.OKORIE
13.1 Meaning of Law Reform
13.2 Responsibility for Law Reform
13.3 Stages of Law Reform
13.4 Challenges of Law Reform in Nigeria

PART ONE: INTRODUCTION
CHAPTER 1
THE IDEA OF A LEGAL SYSTEM
1.1 Meaning of Legal system
The term “Legal system” means the laws, courts, personnel of the law courts, personnel of allied
law institutions, and the entire administration of justice system in a given state or country.
1.2 Nature of Nigerian Legal System

The nature or characteristics of the Nigerian Legal System could be seen from different
perspective, thus:
1.2.1 Duality/Multiplicity of structure

The legal system is dual or multiple in nature because it is a combination of different systems of
law put together, such that the English law applies along with local legislations, Customary Laws
and Islamic Law.
1.2.2 Mixed Judicial set-up

The judicial set up is mixed in such a manner that the courts have civil and criminal jurisdiction
concurrently and also entertain matters on different aspects of the Nigerian law. The 1999
Constitution in section 6 vests the judicial powers for the Federation and for the states in courts
established by the Constitution for the Federation and the states respectively. The judicial set up
reveals a situation where Federal and State jurisdictions are exercised concurrently throughout the
country. Also civil and criminal jurisdictions are exercised concurrently throughout the country.
Also civil and criminal jurisdictions were simultaneously exercised by these courts without
dichotomy and appeals from all the courts go to one Supreme Court at the center.
1.2.3 Nature of Legal Profession

This includes the process of legal education and the practice of the profession after being called to
the Nigerian Bar. At pre-independence era, the qualification for legal practice in Nigeria was to be
called to the English Bar or enrolled as a solicitor in England. With the introduction of the Legal
Practitioners Act of 1962, legal education and practice is now basically controlled by Nigerian
legislation and this has also given room for differences between the position in Britain and Nigeria.
Upon being called to the Nigerian Bar, the legal practitioner is enrolled as a barrister and solicitor
of the Supreme Court of Nigeria. He therefore automatically qualifies to practice as a banister and
solicitor. The legal profession is therefore fused together as the training is for qualification to
practice both as a barrister and as solicitor all together;
1.2.4 Nature of Administration of Justice
The system of administration of justice is adversarial in nature. An accused in criminal trial is

presumed innocent until proved guilty. See s. 36 (5) of the Constitution of the Federal
Republic of Nigeria, 1999, as amended.
1.2.5 Based on Judicial Precedent
The system of adjudication is on the basis of judicial precedents; and
1.2.6 Military influence
The system is characterized by military influence. The military system of the past administrations
in Nigeria for example, brought about unitary system of governance with a centralized chain of
command. Today a cursory look at the Exclusive Legislative List in the 1999 Constitution of the
Federal Republic of Nigeria clearly shows military influence.
1.3 Nature and Functions of Law1
Law by its nature, is characterized by different attributes, such: as command; force; reflection of
the people or the society it applies to. Law is usually followed by sanction in case of disobedience.
Law is nowadays usually made by the legislature in a codified form. It is also a reflection of social
attitude.
The functions of Law include the following:2
It is an instrument of social order, cohesion, harmony, justice and peace;
It is an instrument of economic, social and political change;
It conserves, communicates and reinforces the values of the society;
It constitutes and regulates the principal organs of power and government;
It guarantees and protects fundamental rights,freedoms and liberties;
It is a means of resolving and settling disputes peacefully.
1
Read Osita Nnamani Ogbu, Modern Nigerian Legal System, 3rd Edition,(Enugu, Snap Press Limited,2013), p8-10;
Ese Malemi, The Nigeria Legal System:Text and Cases, Third Edition (Lagos Princeton Publishing Co.1999) p.8-10
2
Ogbu, Modern Nigerian Legal System, op. cit, p8-10; Malemi, The Nigeria Legal System:Text and Cases, op. cit,
p.8-10
1.4 Classification of Law
Law could be classified into different groups. But the most famous classification of law is its
grouping into the following classifications:
1.4.1 Criminal Law and Civil Law
Criminal Law is the type of law that governs a relationship between the state or government and
its citizens. It is usually accompanied by sanctions (punishments). Civil Law on the other hand is
the law that regulates the relationship between the citizens or between the citizen and the state in
terms of enforcement of rights and obligations. It does not attract sanctions in terms of
punishments. Rather, a breach of civil law incurs liabilities on the defaulting party.
1.4.2 Private and Public Law
Private Law is a group of laws that regulates relationship between the citizens among themselves
and even their relationship with the state in terms of rights and obligations. An example of a private
law is the law of contract or law of torts, equity and trusts. Public law on the other hand is a group
of laws set up by the state to regulate state functions in such a manner that the overall interests of
the public is protected. Examples of Public law are Constitutional law and criminal law.
1.4.3 Civil and Common Law
Civil Law are the laws of the Roman Empire which were in existence before the emergence of the
English Law. Civil laws are now more applicable in France and French colonies. They are mostly
statutory laws. Common Law on the other hand is the law applicable in England, developed from
the customs of the English people, substantially based on the principle of judicial precedents. Civil
Law is inquisitorial in nature while Common Law is adversarial in nature.
1.4.4 Municipal and International Law
Municipal Law is a group of laws made by and applicable to a state or country while international
Law is a group of laws made for application across state borders for regulating relationship
between sovereign countries. International law is in the nature of treaties and protocols.
1.4.5 Substantive and Procedural/Adjectival Law
Substantive law is the law that provides for the ‘dos’ and the ‘don’ts’ in the society. Examples of
substantive laws are the Constitution and criminal laws in Nigeria (such as the Criminal Code,
Penal Code Laws) that states crimes and punishments. Procedural or Adjectival law on the other
hand consists of the laws for enforcement of the substantive law. Examples of these are: the
Administration of Criminal Justice Act, 2015 as well as the Administration of Criminal Justice
Laws of the various states in Nigeria, the High Court Civil Procedure Rules of the States. The
procedural laws show how to enforce the substantive laws of the land.
1.4.6 Customary and Non-Customary Law
Customary law is a collection of laws that are developed based on the practices in a community
or society, which the people accept as binding on them. It is substantially unwritten and flexible.
Non-customary law on the other hand consists of laws developed in any other way other than the
practices of a community or people. Examples of these are the laws made by parliament or
scripture based laws like the Islamic Law.
PART TWO: SOURCES OF NIGERIAN LAW
CHAPTER 2
ENGLISH LAW
English Law is the law of England. English law became applicable to the territory now called
Nigeria at different times by different ordinances and proclamations between 1861 and 1914. The
Supreme Court Ordinance of 1863; S.C Ordinance of 1876, the SC Proclamation Ordinance of
1900 and the SC Ordinance of 1914. By 1954, when Nigeria became a Federation, the Supreme
Court Ordinance was repealed and replaced with the High Court Law of the regions. The
Interpretation Act, Cap I. 23, LFN, 2004, also carries similar provision. The English law
applicable in Nigeria, as a source, is divided into Extended English Law and Received English
Law.
2.1 Extended English Law
Extended English Law are statutes and subsidiary legislation made in England and applied directly
to Nigeria by their own force or by the order of the British Government. The basis of their
application was the Colonial Law Validity Act of 1865 from which the colonial masters derived
their authority to legislate for the colonies. Extended English Law was in effect, statutes enacted
by the British Parliament to have the force of law in Nigeria before independence due to our
colonial status. Being a British colony, the country was pinned to the full legislative authority of
Britain. Upon independence in October 1960 however, and by virtue of the Nigeria Independence
Act of 1960, Nigeria became a fully independent sovereign nation, thereby depriving the British
Government of the power to legislate for Nigeria. Examples of Extended English Law that have
been repealed in Nigeria include: the West African Fugitive Offenders Order in Council 1923; the
Copyrights Act 1911 and the Nigerian Independence Act 1960 and the Nigeria (Constitution)
Order in Council, 1960.
2.2 Received English Law
S. 32(1) Interpretation Act, Cap. 192, Laws of the Federation of Nigeria 1990, makes provision
to the effect that the Common Law of England and the doctrines of Equity together with the
Statutes of General application that were in force in England on the 1st day of January 1900 shall
in so far as they relate to any matter within the legislative competence of the federal legislature be
in force in Nigeria. See also S. 26 & 29 High Court Law of Northern Nigeria 1963. Cap. 49; S.15
(1) and (2) High Court Law of Eastern Nigerian 1963; S. 12 High Court Law, Lagos Laws 1973.
Cap 52;
The implication of all these provisions is that the following forms of English Law were being
received into the country: (1) Common Law (2) Doctrines of Equity (3) Statutes of General
application that were in force in England on 1st January 1900.
2.2.1 Common Law
The term ‘Common Law’ was introduced by the colonialists to mark a distinction between the
general written law of the universal church from rules peculiar to the provincial church. In later
years common law courts of England namely, the Court of Common Pleas (which dealt with cases
where the King was particularly concerned) and the Court of Exchequer (which dealt with revenue)
empowered by law to administer the law and custom of the realm. Under the guise of enforcing
this and apart from administering the few legislations by the king, the royal judges took the local
customs that were found and bound them together into a national law. It consisted of general and
local customs carried through the realm by the assize judges on their circuits. Common Law is
therefore based on customs. Thus the law was ‘common’ and different from what was special or
extraordinary - e.g. Roman law.
Common Law gradually developed through the technique of argument, exposition and speculation
by the advocates who appeared before judges. In a case where a novel situation is being presented,
the advocate and the judge would scout around for the most similar case available. On finding this,
arguments are received as to whether the two cases can be similarly treated or distinguished.
Therefore, Common Law means the legal system and habits of legal thought evolved by English
men. In this sense it can be contrasted with systems of law derived from other jurisdictions e. g.
Roman law. It is thus a label for one kind of legal system.
In the narrow sense, Common Law is the result of the system of precedents used in old common
law courts. It refers to all the unenacted portion of English laws contained in judges’ decisions but
excluding those rules formerly devised and administered by the Court of Chancery. It is thus used
to distinguish rules derived from judicial decisions of superior courts in contrast to those arising
from statutory law. Note however that not all judge-made laws are derived from common law,
some derive from equity which are of distinct historical origin. This is the common law as a source
of Nigeria law.
2.2.2 Doctrines of Equity
Equity refers to the body of rules administered by the former English Court of Chancery. Its
development is connected with many factors. For instance in the 13th century, England judges saw
their duty as enforcing what justice demanded. By the 14th century however, emphasis was laid
on the application of the law. Since justice according to the law may not necessarily be fair, its
application sometimes resulted in injustice despite the fact that a man’s case had been fairly tried
and the law accurately applied. This tended to narrow down common law into a rigid system since
it was being dominated by technicalities. The need for a more flexible machinery of justice
eventually arose.
3.2.3 Statutes of General Application
Asides from the Common Law and the Doctrines of Equity, the Statutes of General Application
form part of the Received English Law of Nigeria. Statutes of General Application (SOGA) are
the laws that were in force and were of general application in England as at 1st January, 1900.
The Court held in Young v. Abina (1940) 6 W.A.C.A 180 that the geographical location does not
mean the whole of the United Kingdom but only England.
For a law to qualify as a S.O.G.A, it is not enough that these laws we in force on the 1st January,
1900, it must also have general application throughout England. The Court, per Osborne C.J in
Attorney-General v. John Holt & Co. (1910) 2 N.L.R 1 at 9 gave a rough and fallible test for
knowing when a law had general application thus:“Two preliminary questions can, however, be
put by way of a rough but not infallible test, viz.:
(1) By what courts is the statute applied in England?
(2) To what classes of the community in England does it apply? If, on January 1, 1900, an Act of
Parliament were applied by all civil or criminal courts, as the case may be, to all classes of the
community, there is a strong likelihood that it is in force within the jurisdiction. If on the other
hand, it were applied only by certain courts, (e.g. a statute regulating procedure), or only to
certain classes of the community (e.g an Act regulating a particular trade), the probability is that
it would not be held to be locally applicable.”
However, as stated by Osborne J., this test is not infallible. This is as shown in the fact that the
Infants Relief Act, although applicable to only a class of persons, has been held to be a Statute of
General Application. Further, although the case held procedural laws is not a Statute of General
Application, the Common Law Procedure Act has been held to be a Statute of General
Application.
In the case of Lawal v. Younan (1961) 1 All NLR 257 at 266-269, the Honourable Court, per
Brett CJ held that Statutes of General Application in Nigeria could be grouped into two:
i. Statutes concerning property and conveyancing e.g the Wills Act 1837, Conveyancing Act
1881 e.t.c and
ii. Statutes relating to commercial transactions e.g Infants Relief Act 1874; Bills of Exchange
Act 1882; Partnership Act1890 and Sale of Goods Act 1893
3.2.4 Survey of the Applicable English Statutes in Nigeria Today
At the Federal level some efforts have been made to indigenize our legal system.
Between February 1986 – March 1987, the Nigeria Law Reform Commission undertook a
review of pre 1900 English SOGA which were in force in certain parts of the country.
This was necessitated by the fact that most of the Acts had been repealed and replaced with
more relevant Acts in England.
The procedure adopted by the Commission in view of the controversy and uncertainty as to
which English Act is of general application was to examine each pre 1900 English Act which
is of prima facie general application and in force in Nigeria, to determine its relevance to
present Nigerian circumstances.
It would then decide whether or not to repeal and re-enact, in whole or in part, with or without
amendments.
By the Revised Edition (LFN) Decree 21 of 1990, a law revision committee was established
to revise and prepare a revised edition of the Laws of the Federation.
See S. 1 of the Decree.
This resulted in the Revised Edition of the Laws of the Federation of Nigeria 1990.
By s. 3(1) of the Decree, the Attorney General of the Federation (AGF) was empowered to
specify by Order a schedule of enactments which shall not be necessary for the committee to
include in the revised edition on the ground that they were obsolete or of a temporary nature
or under revision with a view to replacement or of restricted or personal application.
Pursuant to this provision, the AGF made the Revised Edition (Authorized Omission) Order
1990.
Almost all the imperial laws were omitted from the Revised Edition.
Curiously, s. 3(2) of the Decree provided that enactments omitted in accordance with
subsection (1) shall have the same force and validation as if they had not been omitted in the
revised edition.
In other words, the imperial laws omitted from the Revised Edition were still applicable as part
of our laws.
This did not change even with the revision of the LFN in 2004.
It has been suggested that the reason for their omission is simply because they are not laws
made by our own Legislature, but rather, they are part of our laws by importation.
It has also been further suggested that undertaking a wholesale abrogation of SOGA may pose
a challenge to the Legislature because of the uncertainty/difficulty in identifying which statute
is a SOGA and which is not.
Perhaps, this is the reason it has not been done.
But, the foregoing notwithstanding, SOGA is gradually losing relevance because gradually
local statutes have replaced most statutes of general application.
We agree with learned author, J O Asein, that the spate of law reforms has actually devalued
SOGA.
CHAPTER 3
NIGERIAN LEGISLATION
3.1 Meaning of Legislation
The term ‘legislation’ refers to a law or set of laws made by the government-
federal/central/national, state or local governments.
It is not limited to those made by the legislature but also includes rules and regulations of
executive bodies and administrative agencies passed in the exercise of delegated legislative
functions
It can also refer to the process of making rules and laws by the government.
See Cambridge Dictionary- https://dictionary.cambridge.org/dictionary/english/legislation
Britannica- https://www.britannica.com/topic/legislation-politics
3.2 Types of Legislation
Nigerian legislation is made up of statute and subsidiary legislation which are discussed below.
3.2.1 Statutes
A statute is an enactment or written law made by the Legislature (legislative arm of government)
Statute is also known as primary legislation in the sense that it is made by the legislature
Examples of statutes are Acts of the National Assembly or Laws of the State Houses of
Assembly. The different types of statutes are discussed below. However, some are discussed
only for historical purposes as they currently no longer exist in Nigeria’s legal system.
Ordinance
These are statutes enacted or deemed to have been enacted by the central legislature (unitary
government) between 1914 (from amalgamation) - 1954 (when Nigeria became a Federation)
Note that in 1916, pre 1914 enactments were also re-enacted as ordinances.
Between 1954 (when Nigeria was a Federation with three regions) and 1960 (Independence),
statutes enacted by Federal Legislature were called ordinances. Regional enactments were Laws.
From 1960 (independence), an enactment made by the Federal Legislature was called Act.
Note that the term ‘Ordinance’ is now only of historical importance as applicable ordinances are
now re-designated and referred to as Act
Act
This is an enactment or a law made or deemed to be made by Federal Legislature.
It includes the following:

(a) Enactments made or deemed to have been made by the Federal Legislature from October 1,
1960 (Independence) to January 16, 1966 (i.e. inception of military government).
(b) Enactments made or deemed to have been made by the Federal Legislature between October
1979 – December 1983;
(c) Enactments made or deemed to have been made by the Federal Legislature between May 29,
1999-Date.
See Section 4 Constitution of the Federal Republic of Nigeria (CFRN) and the Legislative List
for the legislative competence of the Federal Legislature (National Assembly).
Law
Note that the term ‘Law’ is loosely used to refer to a legislation or statute.
In the context of Nigerian Legislation, the term technically refers to enactment or statute made or
deemed to be made by state legislature or regional legislature during the period that Nigeria
operated regional government.
It includes the following:

(a) Enactments made or deemed to have been made by the Regional Legislature from 1954
(Federation) to January 16, 1966 (i.e. inception of military government).
(b) Enactments made or deemed to have been made by the State Legislature between October
1979 – December 1983;
(c) Enactments made or deemed to have been made by the State Legislature between May 29,
1999-date.
The legislative competence of the State Legislature (House of Assembly) under the current
dispensation is also contained in the Constitution.
See section 4 CFRN and the Exclusive Legislative List, Concurrent Legislative List, Residual
Legislative List in Part 1, 2nd Schedule CFRN.
Decree
This is an enactment (law) made by Federal Military Government in a military regime (between
January16, 1966 and October 1, 1979; December 31, 1983 and May 29, 1999).
Decrees were enacted by the Supreme Ruling Body ( Supreme Military Council, Armed Forces
Ruling Council or Provisional Ruling Council) and assented to by Head of State and
Commander in Chief of the Armed Forces (C in C)
It is the Supreme law of the land under a military regime. See Federal Military Government
(Supremacy and Enforcement of Powers) Decree No. 45 of 1968.
It is superior to the unsuspended portion of the Constitution and Acts of the legislature in a
Military Government.
Note that the term ‘Decree’ is also for historical importance as applicable decrees have been re-
designated as Acts.
Edict
This is an enactment made by a State (or Regional) Military Government/Governor/Administrator.
It is inferior to a Decree, unsuspended portion of the Constitution and an Act.

Where it is inconsistent with any of the above, an Edict will be void to that extent.
The court cannot question the validity of a Decree or Edict
See Lakanmi v A G West State (1971) 1 UILR 201

By virtue of Public Officers (Investigation of Asset) Edict 5 1967, Military Government of
Western Region forfeited certain assets.
When challenged, Federal Military Government backed up the measure with Forfeiture of Assets
(Validation) Decree No. 45 of 1968.
Supreme Court held that it was a legislative judgment and therefore null and void (directed at
named persons).
Consequently, Federal Military Government enacted Federal Military Government (Supremacy
and Enforcement Powers) Decree 28 of 1970 which set aside the judgment and provided for
incompetence of court to question validity of a Decree or Edict except to the extent that the Edict
is inconsistent with a Decree .
Constitution
Note that the Constitution is part of Nigerian Legislation. It is the supreme law of the land under
a democratic dispensation. S. 1 CFRN 1999
3.2.2 Subsidiary Legislation
A subsidiary legislation also known as subsidiary instrument is a law made by delegated

authority under a statute.
Examples of subsidiary legislation are Rules (including Rules of Court), Regulations, Practice
Directions, and Orders. See the following specific examples:
(a) The Rules of Professional Conduct in the Legal Profession 2007 made pursuant to powers
conferred on the General Council of the Bar by the Legal Practitioners Act;
(b) High Court (Civil Procedure) Rules of the various states made pursuant to powers conferred
on the Chief Judges of the States by s.274 and the various High Court Laws of the states;
(c) Companies Regulations 2021 made pursuant to the powers conferred by the Companies and
Allied Matters Act 2020;
(d) Federal Capital Territory Courts (Custodial and Non-custodial Sentencing) Practice
Directions 2020 made pursuant to the powers conferred on the Chief Judge of the FCT by
section 259 of the Constitution and section 490 (f) and (g) of the Administration of Criminal
Justice Act 2015.
Note that section 37 of the Interpretation Act, Cap. 123 LFN, 2004, defines ‘subsidiary
instrument’ as any order, rules, and regulations, rules of court or bye-laws made in exercise of
powers conferred by an Act.
Subsidiary legislation saves legislative time and the technical nature of the subject in many cases
makes this imperative. Eg. Remuneration Order 1991
3.3 Some Terminologies used in relation to Nigerian Legislation
3.3.1 Principal Legislation or Statute

This term is used to refer to an enactment or legislation if there is a statute amending it.
It is used in the amending legislation to refer to the amended legislation
3.3.2 Enabling Statute or Law

This refers to a statute under which a subsidiary legislation is made.
Example:
• The Court of Appeal Rules were made pursuant to s.8. (2) of Court of Appeal Act 1976
which provides : “The President may make rules regulating the practice and procedure of
the Court of Appeal.”
The Court of Appeal Act is therefore the enabling law or statute for the Court of Appeal
Rules.
3.3.3 Amendment or Amending Statute

A statute is amended when its provisions are altered by another statute. The term amending or
amendment statute therefore refers to the subsequent statute that amends the earlier statute. On
the other hand the earlier statute that is amended is referred to as an amended statute.
Example:
• Pension Rights of Judges (Amendment) Act 2016 which amended section 4 of the Pension
Rights of Judges Act Cap P5, LFN 2004 by substituting the definition of “judicial officer”
with a new definition.
3.3.4 Repeal or Repealing Statute

A statute is repealed when its existence is brought to an end by a subsequent statute. The
subsequent statute is referred to as the repeal or repealing statute while the earlier statute is
referred to as the repealed statute.
Note that repeal may be with respect to specific provisions or the whole enactment.
Examples:
• Railway Loan (International Bank) (Repeal) Act 2017 which repealed the Railway Loan
(International Bank) Act Cap R2 LFN, 2004.
• Interpretation Act Cap 123, LFN 2004 which repealed a provision in the Act Authentication
Act, Cap A2 LFN, 2004.
See section 4 and 6 of the Interpretation Act, Cap 123, LFN 2004 for effect of repeal of a statute.
3.3.5 Re-enactment or Re-enacting Statute

A statute is re-enacted when it is replaced by a subsequent statute. The subsequent statute is
referred to as the re-enactment or re-enacting statute. Often, the subsequent re-enacting statute
also repeals the earlier statute. This is to avoid the co-existence of two statutes on the same
subject matter which may result in unnecessary conflict.
Example:
• Economic and Financial Crimes Commission (Establishment, etc.) Act, Cap. E1, LFN, 2004
which repealed and replaced the Financial Crimes Commission (Establishment) Act 2002
• Electoral Act 2010 which repealed and replaced the Electoral Act, 2006 and the Independent
National Electoral Commission Act, Cap 15, LFN 2004
3.4 Nature and Purpose of Legislation
Legislation is the most important instrument of legal development.
It affects all other sources of law as it can alter or amend their content.
Legislation is politically the most revolutionary, most progressive and most radical source of law
used in responding to or addressing moral, economic and social issues in the society.
Examples:
(a) The following legislation were used in the past to address various emerging societal issues in
Nigeria
(b) Robbery and Firearms Act;
(c) Corrupt Practices and other related offences Act;
(d) Failed Bank Act;
(e) Terrorism Prevention Act;
(f) Trafficking in Persons (Prohibition) Enforcement and Administration Act;
(g) Anti-Kidnapping Laws of Different States.
3.5 Hierarchy of Laws in Nigeria
Military Regime
Decree
Unsuspended portions of the Constitution
Act
Edict
Laws
Civilian Regime (Democratic Dispensation)

Constitution
Act
Law
3.6 The Authorities that Enact Nigerian Legislation
3.6.1 Military Administration
The Head of State and Commander- in- Chief was responsible for Legislating for the Federation
in consultation with the highest Adminstrative/Legislative body- Supreme Military Council,
Armed Forces Ruling Council, or the Provisional Ruling Council.
The Military Administrators of the States exercised similar function in the States.
3.6.2 Civilian Administration (Democracy)

National Assembly legislates for the Federation (Acts) while the House of Assembly of the various
States legislates for the State (Laws) based on the Legislative list and other provisions of the
Constitution. See section 4, 11, 12 and other relevant provisions of the Constitution.
3.7 Parts of a Statute
3.7.1 Long Title
This states the general purpose of the statute.
It is an all embracing title of a statute.
Eg. “An Act to Authorize the Raising of Loans in Nigeria by the Issue of Certain Securities
through the Post Office and for Purposes Connected with the matters aforesaid” (Saving Bonds
and Certificates Act 1962)
It may aid in interpretation of the statute but not where the words are plain and unambiguous. Re
Wyke 1961 Ch. 229.
3.7.2 Short Title
This is the short form of the title used for citation purposes
E.g Companies and Allied Matters Act. See s. 870 CAMA
Cf. its Long title

An Act to established the Corporate Affairs Commission, provide for the incorporation of
companies and incidental matters, registration of business names and the incorporation of
trustees of certain committees, bodies and associations.
3.7.3 Preamble
This is an enactment’s introduction or preface.

Its purpose is to portray the interest of the framers and the mischief they seek to remedy.
It explains the reason for the enactment.
It gives the history behind the passing of the Act.
Eg. Whereas 1, 2, 3, etc.
These days, they are used for constitutional and international subjects (i.e. in Constitutions and
Treaties/ Treaty implementation laws).
See Treaty to Establish Rotterdam Convention on the Prior Informed Consent Procedure for
Certain Hazardous Chemicals and Pesticides in International Trade (Ratification and Enforcement)
Act, 2005
It is not part of the statute and generally is not resorted to in interpretation.

AG V Hanover (1957)AC463
It may be resorted to if there is a compelling reason to, for example, where there is ambiguity.
OgbonnaV Ag Imo (1992)2SCNJ 26
3.7.4 Commencement
This refers to the day/date the Act comes into force or operation,
This is stated in the Act.
Where it is not stated in the Act, it takes effect the date it received assent.
S. 3 Acts Authentication Act.
Where no assent is required (e.g. where President is overridden) the statute should commence on
the date it is published in the gazette.
3.7.5 Side Note or Marginal Note
This refers to the note on the margin or side of a section of a statute to highlight the subject of
the section and to facilitate reference.
It is not part of the enactment and is only intended for convenience of reference.
S. 3(2) Interpretation Act
It is generally not used in interpretation

Yabugbe V Police (1992)4SCNJ 116
The court may however have recourse to marginal note in interpreting a section where there is
ambiguity.
Schroder v Major (1989) 2 NWLR (Pt. 101) 1; Ondo State University v Folayan (1994) 7
NWLR (Pt. 354) 23; Akintola Jimoh, Law, Practice & Procedure of Legislature, Learned
Publishments Limited, Lagos, 1999, p.143.
Though they may serve as guide in interpretation but not at expense of clear words – Udoh V
Orthopaedic Hosp (1993)7SCNJ (pt 2) 436; UTC V Pamotei (Pt103) 244
3.7.6 Schedules
This contain details that will be too unwieldy to include in the sections or body of the statutes
e.g. forms, tables, etc.
Where there is ambiguity, schedules may be useful in interpretation but will not override the
plain words of the statute.
FCSC v Laoye (1989) 2 NWLR (Pt. 106) 652.
Where a schedule is in conflict with the body of a statute, the body of the statute will prevail over
the schedule.
AG Anambra v AG Federation (1993) 6 NWLR (Pt. 302) 692
3.7.7 Interpretation
The interpretation provision is a clause or section in the statute which contains the definition and
meaning given to words and expressions used in the Act.
Where the word “includes” is used in defining a word, it means that the definition is not
exhaustive.
Interpretation section may be placed at the beginning of an Act (e.g. s. 2 Sheriff and Civil
Process Act Cap. S.6, LFN, 2004).
It may also be placed at the end of the statute as is the case with most statutes in Nigeria.
3.8 Rules or Canons of Statutory Interpretation
3.8.1 Literal Rule

This rule of interpretation is also known as primary rule of interpretation.
It states that where the words of a statute are clear and unambiguous, they should be given their
ordinary dictionary meaning.
The rationale for the rule lies in the concept of the supremacy of parliament and the doctrine of
separation of powers.
Application of Literal Rule
Literal rule has been applied in in Nigeria in the following cases.
• Awolowo v Shagari (1979) 6-9 SC 1

Interpretation of section 34 of Electoral Decree
To be declared president, a candidate must obtain ¼ votes cast in each of 2/3 of the states (i.e. 19
states).
Petitioner argued that 2/3 was 13 states.
Supreme Court applied literal rule and held that it was 12 2/3 .
• Adegbenro v Akintola (1962) 1 All NLR 465

Interpretation of section 33(10) of the Constitution of Western Nigeria.
The provision gave the Governor power to remove the premier “if it appeared to him” that he no
longer commanded support of majority of the House of Assembly.
Privy Council applied literal rule and held the Governor did not require resolution of the House
to show that Premier no longer commanded support.
• R v Bangaza (1960) 5 FSC 1

Interpretation of s. 319 (2) of the Criminal Code.
The section states that “where an offender who in the opinion of the court has not attained the
age of 17 years has been found guilty of murder, such offender shall not be sentenced to death
but shall be ordered to be detained.”
The court applied literal rule and held that the age is at the time of conviction and not at the
commission of the offence.
Accused who was less than 17 at commission of the offence but more than 17 at conviction was
sentenced.
Note that the Criminal Justice (Miscellaneous Provisions) Decree No. 84 1966 later corrected
this by providing that the relevant age is at time of the offence.
See now s. 405 Administration of Criminal Justice Act 2015
Note that the application of the literal rule of interpretation may sometimes produce absurdity.
Examples:
In Whitely v Chappel (1868) L.R. 4 Q.B 147, a statute made it an offence 'to impersonate any
person entitled to vote.' The defendant used the vote of a dead man. The statute relating to voting
rights required a person to be living in order to be entitled to vote. The literal rule was applied
and the defendant was acquitted.
In R v Harris (1836) 7 C & P 446, the defendant bit off his victim's nose. The statute made it an
offence 'to stab, cut or wound'. The court held that under the literal rule the act of biting did not
come within the meaning of ‘stab cut or wound’ as these words implied an instrument had to be
used. The defendant's conviction was consequently quashed.
In Fisher v Bell (1961) 1 QB 394 the defendant shopkeeper displayed in his shop window a flick
knife accompanied by a price ticket displayed just behind it. He was charged with offering for
sale a flick knife, contrary to s. 1 (1) of the Restriction of Offensive Weapons Act 1959. The
Act made it an offence to "offer for sale" an offensive weapon. The court applied the literal rule
and quashed his conviction on the ground that goods on display in shops are not "offers" in the
technical sense but an invitation to treat under the law of contract.
3.8.2 Golden Rule
This rule is derives from the English case of Becke v Smith (1836) 150 E.R. 724 or (1836) 2 M
& W 191.
The rule is that where the literal interpretation will contradict the intention of the legislature or
result in clear absurdity or make the statute impossible to apply, the courts are at liberty to
modify the language of the statute to avoid such results.
Application of Golden Rule
The rule has been applied in the following cases.
• University of Ibadan v Ademolekun (1967) 1 All NLR 213

The Supreme Court was faced with the issue of whether the court can declare an Edict made by
Military Governor of Western Nigeria void.
Two provisions came up for interpretation

S. 3 (4) of the Constitution (Suspension and Modification) Decree 1966- Provides that where an
Edict was inconsistent with Decree, the Edict was void to the extent of inconsistency.
S. 6 of same Decree-Provided that no question as to validity of any Decree or Edict shall be
entertained by any court in Nigeria.
It was argued that even if the Edict was void by virtue of section 3(4), the Court lacked power to
declare it so by virtue of s. 6.
Held that the literal interpretation will lead to absurdity where an inconsistent law would still be
applicable.
Court declared the Edict void to the extent of its inconsistency with the Decree.
Awolowo v Federal Minister of Internal Affairs (1966) LLR 177 or (1966) NSCC 208 or (1966)
All NLR 178
The court was interpreting s. 21(5) of 1960 Constitution.
It provided that an accused is entitled to defend himself in person or by counsel of his own
choice.
Literal interpretation would mean that any legal practitioner could represent the accused even if
not qualified to practice in Nigeria.
Awolowo sought to be represented by a lawyer who was outside Nigeria but he was denied
entry.
Court applied the golden rule and held that the legal practitioner if resident outside Nigeria, must
be someone who has a right to enter Nigeria and qualified to practice in Nigeria.
Lee v Knapp (1967) 2 QB 442

This was on interpretation of s. 77(1) Road Traffic Act 1960 (UK).
The provision required the driver of a motor vehicle to stop after an accident.
It was held that a momentary stop was not enough to comply with the provision since the
purpose was to give information to Police.
The Court interpreted stop to mean that:
the driver shall stop the vehicle and where he has stopped for such a period of time in the
prevailing circumstances having regard in particular to the character of the road or place
in which the accident happened as well as provide a sufficient period of time to enable
persons who have a right to do so and reasonable ground for doing so to require of him
directly or personally the information which will be required under the section.
3.8.3 Mischief Rule

This is also known as the rule in Heydon’s case (1584) 3 Co Rep 7a & 7b.
This is the case in which the rule was first laid down.
The rule enjoins the court to construe the statute in such a manner as to suppress the mischief
which the statute aimed at defeating and advance the remedy provided by the statute.
In applying the rule, the court should consider the following:
What was the law before the making of the statute?
What was the mischief/defect which the law did not provide?
What remedy has the parliament resolved to cure the mischief/defect?
What is the true reason for the remedy?
The main challenge of this rule is how the court is to determine the mischief.
Can the court consider the political history of the statute –i.e. press reports, debates in
parliament, government pronouncements etc preceding the enactment?
It has been suggested that this should be ignored because it places unnecessary burden on the
lawyers and judges and may lead to uncertainty in the law because it might become difficult to
differentiate history from statute.
In Davies v Johnson (1978) 2 WLR 553, it was stated that the proper practice was for the judge
to look at the language of the statute with his knowledge of previous laws and social conditions.
In Black Clawson International Ltd v Papierweoke (1975) AC 591 ,it was stated that it is
permissible to look at reports out of which a statute arose.
Application of Mischief Rule
The rule has been applied in the following cases.
Akerele v IGP (1955) 21 NLR 37

The issue was the interpretation of s. 210 (b) Criminal Code LFN 1958.
It provides that “any person who accuses or threatens to accuse any person with being a
witch…is guilty of a misdemeanor and is liable to imprisonment for two years.”
It was argued that “accuses” meant formal accusation by swearing to an information on oath.
The court considered the history behind the provision which was to suppress indiscriminate
accusations of witchcraft and held that mere accusation was sufficient to constitute the offence.
• Savannah Bank Nigeria Ltd v Ajilo(1989) 1 NWLR (Pt. 98) p.41

The issue was the interpretation of s.22 of the Land Use Act.
The section required Governor’s consent for alienation of interest in land.

Chief FRA Williams had argued that the provision applied only to express grant and not deemed
grant.
The court considered the mischief sought to be cure by the Act which was the multiplicity of
land tenures and the remedy provided which was the unification of tenure systems.
It was held that the provision applied to both express and deemed grant.
• Smith v Hughes (1960) 1 WLR 830
This was on interpretation of s. 1 of Street Offences Act 1959 (UK)

The provision made it an offence for a common prostitute to loiter or solicit in a street or public
place for purpose of prostitution.
Two prostitutes standing on a balcony in their house solicited men passing on the street by
tapping on the balcony rail or window pane to attract their attention.
They argued that they were not in the street or public place for prostitution.
The court held that:
the true construction of s.1 and taking into consideration the mischief at which the Act
was aimed, it mattered not where a prostitute stood (whether on the balcony or in a room
behind a closed or open or half open window) if her soliciting was projected to and
addressed to somebody walking in the street she will be guilty of an offence against s.1.
3.8.4 Ejusdem Generis Rule
The rule is that where in a statute there are general words following particular and specific words
of the same kind (or genus), the general words will be restricted or confined to the class of those
particular words.
Application of the Ejusdem Generis Rule
Nasr v Bouari (1969) 1 All NLR 37

This was on interpretation of s. 1(1) Rent Control (Lagos) Amendment Act 1965.
The section defined premises as “ a building of any description, occupied or used by persons for
living or sleeping or other lawful purpose as the case may be whether or not at the time it is also
occupied or used under any tenancy as a shop or a store.”
The court was to determine whether a building used partly as a night club and partly as a living
accommodation was “premises” within the definition.
It was held that other lawful purposes must be in the light of living and sleeping. Consequently, a
premises used partly as night club was not a premises within the section even if the premises was
used partly for sleeping.
FRN v James Ibori & 6 others Charge No. FHC/ASB/1C/2009

This was on the interpretation of s. 14(1) (a) of the Money Laundering (Prohibition) Act 2004.
It provided for an offence in the following case: “any person who-converts or transfers resources
or property derived directly or indirectly from illicit traffic in narcotic drugs and psychotropic
substances or any other crimes or illegal act.
It was argued by the accused that the term “any other crimes or illegal act” should be construed
ejusdem generis and does not therefore apply to funds derived from corruption.
The Court applied ejusdem generis rule and held that those words should be restricted to funds
connected to illicit traffic in narcotic drugs and psychotropic substances.
Note
For the rule to apply, the particular words must belong to the same class.
King v Payne (1866) LR 1 CC 27

An Act made it an offence to convey to a prisoner in order to facilitate his escape “ any mask,
address, a disguise or any letter or any other article or thing.”
It was held that the general term “any other article or thing” was to be understood in its primary
and wide meaning rather than ejusdem generis. It therefore included any article whatsoever
which could facilitate escape.
Note also
For the rule to apply, there must be more than one specie or specific mention.
Allen v Emmerson (1944) 1 KB 262

“Theatre and other places of public entertainment” was held not to create a genus (class).
Note that these are not exhaustive of the rules of interpretation. They are however the most
common ones.
3.8.5 Purposive Approach

The purposive approach is a liberal or a flexible approach to statutory interpretation.
It was formulated in Seaford Court Estates Ltd v Asher [1949] 2 KB 481 and followed in Magor
and St. Mellons Rural District Council v Newport Corporation [1950]2 All ER 1226
The purposive approach to statutory interpretation is a sort of hybrid between the golden rule and
the mischief rule. It seeks to look for the purpose of the legislation before interpreting the words
by taking into account the words used, the importance of the subject matter, the scope and
purpose of the legislation and the background of the legislation.
As Lord Simon explained the purposive approach in Maunsell v Olins [1975] AC 373 , the first
task of a court of construction is to put itself in the shoes of the draftsman to consider what
knowledge he had and what statutory objective he had before proceeding to ascertain the
meaning of the statutory language.
Advantages of the purposive approach
(1) It is a flexible approach which allows judges to develop the law in line with the intention
of the legislature.
(2) It allows judges to cope with situations that are unforeseen by the legislature.
(3) It allows the law to develop to cover advances in medical science.
Disadvantages of the purposive approach
(1) Judges are given too much power to develop the law and thereby usurping the power of
the legislature.
(2) Judges become law makers thereby infringing the doctrine of Separation of Powers.
(3) There is room for judicial bias when deciding what the legislature intended.
CHAPTER 4
CUSTOMARY LAW
4.1 Meaning of Customary Law
Customary law is one of the sources of Nigerian Law/ Nigerian Legal System
There are several definitions of customary law. Eg. Niki Tobi, Sources of Nigerian Law; Okonkwo
v Okagbue (1994); Olowoyin v Omotosho(1961); Kimdey v Military Governor of Gongola State
(1988)
In summary, “customary law” consists in Customs, rules and traditions which govern/regulate
relationship of members of a community and are recognized as obligatory by them.
Note that the term “custom” and “customary law” are sometimes used interchangeably.
See definition of custom in section 258(1) of the Evidence Act 2011
"customs" “means a rule which, in a particular district, has, from long usage, obtained the force of
law”.
4.2 Characteristics of Customary Law
1. It must be acceptable by the community in which it operates as obligatory on them. Owonyin

v Omotosho (1961) 1 All NLR 304-expressed as a “mirror of accepted usage”; Okonkwo v
Okagbue (1994) 9 NWLR 301-for custom to have force of law, it must be approved by consent
of those who follow it; Esugbayi Eleko v Government of Nigeria (1931) AC 662
2. It must be in existence at the time of its application or enforcement. Lewis v Bankole (1908) 1
NLR 81-held Per Speed Ag. C.J, that the custom which the courts enforce must be existing
native law and custom and not that of by-gone days ; Kimdey v Military Governor of Gongola
State & Others (1988) 2 NWLR (Pt. 77)-held that custom which once existed but no longer did
so at the time of enforcement does not qualify as customary law.
3. It is flexible and easily adaptable to change because of its unwritten nature. Lewis v Bankole
(supra); Amodu Tijani v Secretary Southern Nigeria (1921) 2 AC 399-held that land was
communally owned could not be transferred by an individual; Alade v Aborishade (1960)5
FSC 167; Oshodi v Balogun (1936) 2 All ER 1632; Alfa v Arepo (1963) WNLR 95; Rotibi v
Savage (1944) 17 NLR 77
4. It is unwritten
4.3 Establishing Customary Law
There are two ways of establishing customary law in court, namely: by Proof/Evidence or by
Judicial Notice – see Ghana case of Angu v Attah (1921) PC 1874-1928, 43 (where the principle
was first established)-held that customary law in the first instance will be proved by calling
witnesses acquinted with the custom unless it has by frequent proof become so notorious that the
courts will take judicial notice of same; Buraimo v Bamgboye (1940) 15 NLR 139 (where principle
was re-echoed in a Nigerian case); S. 14(1) Evidence Act 1945 (where the principle was first
enacted. See now S.16 (1) Evidence Act 2011- “A custom may be adopted as part of the law
governing a particular set of circumstances if it can be judicially noticed or can be proved to exist
by evidence”.).
4.3.1 Establishing Customary Law by Proof or Evidence
Note that proof may be before non-customary court or before customary court.
There are different procedures for proof in the two instances.
4.3.1.1 Proof of Custom before Non Customary Court
Relevant law
Proof of custom before non-customary court is regulated by s. 16 Evidence Act-
(1)A custom may be adopted as part of the law governing a particular set of circumstances if it can
be judicially noticed or can be proved to exist by evidence.
(2) The burden of proving a custom shall lie upon the person alleging its existence
Mode of Proof
There are three ways to prove customary law in such court- by calling witnesses, by use of books,
and by use of assessors.
Proof by Witnesses
There are two categories of witnesses- witness of fact and witness of opinion.
Witnesses of Fact
See S.19 Evidence Act 2011 – They can testify on how the custom was previously applied for
guidance of the court.
Witnesses of opinion
The following can testify as witnesses of opinion-

S.70 E Act – traditional rulers, chiefs or other persons having special knowledge.
S.18 (2) and s.73 EA - persons who would be likely to know of the existence of the custom.
S.68 EA - persons specially skilled (Note similarity between this section and s 56 Evidence Act
1945 and the decision of Edokpolor v Idiehen (1961)WNLR 11 to the effect that merely being a
President of Customary Court does not make one an expert under this particular provision).
Number of witnesses required for proof
Note that there is no particular number of witnesses required to prove custom but it should not be
only the person who asserts the existence of the custom. See Queen v Chief Osogbula Ex Parte
Chief Ekpenga (1962)NMLR; Fadiora v Aboride (1992) 6 NWLR (Pt. 246) 221; Lipede v Sonekan
(1995) 1 SCNJ 184
Proof by use of Books
This is made possible by S.70 Evidence Act 2011 (formerly s 58 EA 1945)-
“In deciding questions of customary law and custom, the opinions of traditional rulers,
chiefs or other persons having special knowledge of the customary law and custom and
any book or manuscript recognised as legal authority by people indigenous to the locality
in which such law or custom applies, are admissible”.
The condition for use of books was laid down in Adedibu v Adewoyin (1951) 13 WACA 19 as
follows:
(a) The book or manuscript must be tendered in court.

(b) The book must be shown to be recognized by the people as an authority.
In that case, both the Plaintiff and the Defendant were members of a particular house. The
Plaintiff sued for a declaration that the Defendant was not entitled to be appointed the Mogaji
of the house. The evidence on qualification for appointment of Mogaji was conflicting and the
judge relied on a book by WARD PRICE entitled “Memorandum of Land Tenure in Yoruba
Provinces” written by a former Administrative Officer in the area-a white man and granted the
declaration sought. The Defendant appealed to WACA which held the declaration invalid
because:
1. The book was not sufficiently important to be cited as an authority in the court.
2. The book could only be relied upon if it is put in evidence before the court in accordance
with section 58 Evidence Act (1945)
3. It was not shown that the said book had been recognized as authoritative by members of the
native community whose custom it described as binding upon them.
See also s. 70 Evidence Act 2011 which also stipulates these conditions.
Note that these conditions have not been followed in subsequent cases.
Adeseye v Taiwo (1956) 1 FSC 84– Court relied on books not tendered namely: Ajisafe: Laws
and Custom of the Yoruba People; Adebisi Folarin: The Laws and Customs of Egbaland.
Suberu v Sunmonu (1957) 2 FSC 33– Court relied on books not tendered
Oyekan v Adele (1957) 1 WLR 876 – Provincial Court relied on reports on customary law not
tendered- Renner CJ: Land Tenure in West Africa; Hesley: Land Tenure in the Colony of Lagos.
See also Amodu Tijani v Secretary for Southern Nigeria (1921) 2 AC 399
NOTE
Section 122 (3) EA provides that:
“in all cases in subsection (2) of this section… , the court may resort for its aid to
appropriate books or documents of reference”
Note that sub-section (2) of s 122 referred to above allows the court to take judicial notice of,
among others, customs acted upon by a court.
Proof by use of Assessor
This was provided for in various High Court laws of the regions except Eastern region. Please find
the equivalent provisions in the various State High Court Laws .See for example, s.80 and s.81
High Court Act (FCT)
An Assessor is an expert in the subject matter of the case under consideration who sits with the
judge and assists the judge from his (assessor’s) special knowledge. In other words, he is a person
who sits with a judge to assist him in an area of knowledge he specializes.
An Assessor is not a member of the court and does not partake in decision of the court. See s 81
High Court Act (FCT)
Note that the use of Assessors has been criticized because parties have no opportunity of
responding to their advice because it is done in chambers.
4.3.1.2 Proof of Custom Before Customary Court
In customary court, proof of custom is governed by customary law.
Note that Evidence Act does not apply to customary court in civil matters. See s.256 (1) (c) E A.
This implies that s. 16 and s.18 EA which require proof of custom do not apply to customary
courts.
The trend of judicial authorities with respect to proof in customary court is to the following effect:
1. Where the applicable Customary Law is that of area of the Court and members or a member
of the court is versed in the custom, proof is unnecessary.
- See Ababio II v Nsemfo (1947) 12 WACA 127
- Olalekan v Police 1962 NNLR 140
- Amadasan v Ohenso (1966) NMLR179
- Akintayo v Atanda (1963) 2 All NLR 104
- Ehiogae v Ehioghae (1964) All NLR 143
Ehigie v Ehigie (1961) 1 All NLR 871
2. Where members are not versed, proof is mandatory

Edokpolor v Idehen (1961) WNLR 11
Fajabi v Odumola (1955-56) WRNLR 133
Ehigie v Ehigie (1961) 1 All NLR 871
4.3.2 Establishing Customary Law by Judicial Notice
Judicial notice is an alternative way of establishing a Customary Law.
Judicial notice of a custom means to presume the existence of the custom without necessity of
proof. In other word, to consider a custom as being in existence without necessity of proving its
existence by evidence.
4.3.2.1 Judicial Notice Before Non-Customary Court
Regulated by S.17 Evidence Act 2011 - provides that a custom may be judicially noticed when it
has been adjudicated upon once by a superior court of record.
See also section 122 (2) (L) EA - provides that the court shall take judicial notice of “all general
customs, rules and principles which have been held to have the force of law in any court established
by or under the constitution and all customs which have been duly certified to and recorded in any
such court”
Query:
1. Is section 122 (2)(l) in conflict with s17 of the Evidence Act?

2. Does the word court in s.122 include inferior courts of record, eg Magistrates Court?
3. Can a Court (Magistrates or High Court) under the above provision, take judicial notice of a
custom established in a Magistrates Court?
Caution about old cases

Note that under s. 14 (2) of the 1945 Evidence Act, the conditions for judicial notice of a custom
were :
1. Must have been acted upon by a court of superior or coordinate jurisdiction.
2. Such court must be in the same area i.e. an area where the custom is uniform – Taiwo v
Dosunmu.
3. The custom must have been acted upon to such an extent that the people in that area look
upon the custom as binding.
The last condition had raised controversy as to what extent it should be acted upon to justify
judicial notice.
This is no longer the law. So, you must read cases decided under the old law on this point with
caution.
See Angu v Attah (1921); Larinde v Afiko (1940)
The above cases were decided before 1945 Evidence Act.
Note that the EA 1945 strictly did not even require frequent proof of the custom but rather proof
to an extent that the people see the custom as binding.
Therefore while frequent proof would be sufficient, a single decision depending on the
circumstances may or may not suffice.
-Cole v Akinyele (1960)-FSC relied on a sole decision in Alake v Pratt (1955) to take judicial
notice of a Yoruba custom
-Olugbemiro v Ajagunbiade III (1990)-held that a solitary decision may be judicially noticed.
Rabiu v Abasi (1996)-SC adopted Olugbemiro
Oko v Ntudikem (1993)-SC held that a single decision is not sufficient for judicial notice.
4.3.2.2 Judicial Notice before Customary Court
Judicial notice is governed by Customary Law just like proof.
Where the court is versed in the Customary Law which applies to its area of jurisdiction, it may
take judicial notice.
4.4 Validity of Customary Law
A customary law is said to be valid if it meets the legal requirement or condition for enforcement
as customary law.
Validity of customary law is governed by:
-Various High Court Laws of the States and the FCT –See for example s. 29 High Court Act
of the FCT and s.16 High Court Law Bayelsa State
-Evidence Act 2011. See s.18(3).
From the above provisions, there are three tests for determining validity of Customary Law,
namely: repugnancy test, incompatibility test, and public policy test.
4.4.1 Repugnancy Test
For a custom to be valid and enforceable, it must not be repugnant to natural justice, equity and
good conscience.
Note that the terms are interpreted conjunctively to refer to fairness.
Note that Customary Law is not repugnant because it is contrary to principles of English Law or
English sense of justice.
See the following cases:

- Lawal Osula v Lawal Osula (1995) 10 SCNJ 84.
- Agidigbi v Agidigbi (1996) 6 SCNJ 105
- Imade v Otabor (1998) 4 NWLR (Pt. 544) 20
- Lewis v Bankole (1908) 1 NLR 81
- Rufai v Igbirra Native Authority
A Customary Law which is barbarous or uncivilized will be invalidated on that ground.
See the following cases:
- Guri v Hadejia Native Authority (1959)

- Edet v Essien (1932)’
- Re Effiong Okon Ata (1930)
- Amachree v Kallio (1914)
- Nzekwu v Nzekwu (1989)
- Meribe v Egwu (1979)
- Okonkwo v Okagbue
- Mariyama v Sadiku Ejo (1961)
- Compare with the following cases:
- Ashogbon v Odutan(1935)
- Okoriko v Otobo (1961)
- Ogamien v Ogamien (1964)
A Repugnant customary law must be rejected in toto and not modified.
See Eshugbayi Eleko v Government of Nigeria

4.4.2 Incompatibility Test
The custom must not be incompatible with any law for the time being in force.
There is a controversy as to whether ‘any law’ includes English Law
In some cases it was held to include English law.
See Adesubokun v Yunusa (1971) NNLR 77 – held that it includes S.O.G.A.
Re Adedavoh (1951) WACA 304
Malomo v Olusola (1954) 21 NLR 1
However, in Rotibi v Savage ,it was held to apply to local enactments only.
The position in Rotibi is preferable otherwise it will amount to implied abolition of customary
law. Note that incompatibility may be direct or indirect.
Direct incompatibility is where a local law abolishes or modifies a particular customary law e.g.
Abolition of Osu Caste System Law Eastern Region; Limitation of Dowry law, laws of Eastern
Region – limited amount payable as dowry to N60.00; S.36(12) CFRN which abolishes
customary law offences because they are unwritten.
Indirect incompatibility arises where the existence of customary law is inconsistent with the local
enactment. See Cole v Akinyele.– Yoruba custom that legitimacy was based on acknowledgment
while legitimacy under Legitimacy Act was based on subsequent marriage of the mother.
4.4.3 Public Policy Test
This test requires that for a customary law to be valid and enforceable, it must not be contrary to
public policy.
It is difficult to determine what is meant by public policy or who determines it.
But in Okonkwo v Okagbue – held that anything is treated as against public policy if it is
generally regarded as injurious to public interest.
Note that the test of public policy has been applied in the some cases.
- Re Adedevoh (1951) 13 WACA 300-custom that encouraged promiscuous intercourse held

contrary to public policy
Note that the public policy test was provided for in proviso to S.14(3) of Evidence Act 1945
which is now s. 18(3) EA 2011.
Note however that in many of the cases where it was applied, reference was not made to section
14 (3) EA 1945 which is now s. 18(3) EA 2011, as the basis.
- Read Okonkwo v Okagbue (1994) 9NWLR (Pt. 368) 301; Alake v Pratt; Cole v Akinyele
CHAPTER 5
ISLAMIC LAW
5.1 Meaning of Islamic Law
Islamic Law derived its name from Islam. Islam is an Arabic word, which literally means
submission and peace. In its religious sense, Islam denotes submission to the will of God Almighty
Allah and in its general sense, it means establishment of peace and discipline. It is the law
applicable to the adherents of Islamic religion, world over. Islamic Law is an all-embracing legal
system that regulates and guides the life and conduct of Muslims concerning their rights and duties
based on the provision of the Holy Qur’an and the Sunnah of Prophet Muhammad S.A.W (Peace
Be Upon Him-P.B.U.H). Islamic Law and Shariah are interchangeably used to mean the same
thing. Shariah is an Arabic term that means straight path by which the purpose of faith may be
fulfilled. (Qur’an 45:18)
“Shariah” is an Arabic word that means the path that leads to the spring where drinking water is
fetched. The word is adopted by jurists of Islamic Law for the ordinances that Allah ordains for
His worshippers so that they may be faithful and striving towards where lies their salvation here
in this life and in the hereafter. Thses ordinances are called Shariah.
Islamic Law is a source of Nigerian Law by virtue of section 315 CFRN1999, as an existing Law.
Islam and Islamic Law came into the northern part of what is now called Nigeria around the 11th
century (1086) through Borno. See also item 61, 2nd Schedule to the CFRN1999 and the cases of
USMAN V UMARU (1992) LPELR 3432 (SC) and ALKAMAWA V BELLO (1998) LPELR-
424 (SC).
5.2 Sources of Islamic Law
The sources of Islamic Law are: the Qur’an, Hadith/Sunnah, Ijma’ and Qiyas. It should be noted
that the Qur’an and Hadith (Sunnah) are the primary sources, and they are jointly called Nas,
While Ijma and Qiyas are the secondary sources, and they are called Ijtihad.
5.2.1 Qur’an
The Qur’an as a scripture is the grundnorm from which every other source of Islamic law derived
its validity and strength. The Qur’an, as a revelation contain laws regulating all aspect of human
existence from Government to family relations, and even what to eat, what to wear, how to treat
neighbours and how to share the estate of a deceased person. See Qur’an 4:59; 2:83; 2:173; 24:31;
2:180; 4:7-9, etc. The Qur’an is divided into 114 chapters and about 6000 verses, which contain
laws dealing with all aspect of life on various issues from government to family relations, what to
eat, what to wear, how to treat neighbors, crimes and punishment, inheritance, trade and commerce,
charity and justice, etc. For example, inheritance issue was settled by the Qur’an –Chs 2:180 &
240; 4:7-9, 11,12,19,38. It was originally in Arabic but subsequently translated into so many
languages. The Qur’an has never been amended because it is a divine and not a human revelation.
The Qur’an is the Holy book and the strongest primary source of Islamic Law.
5.2.2 Hadith/Sunnah
These are the collection of the sayings, practices and tacit approval in the life of the holy prophet,
Prophet Muhammad (P.B.U.H). These are amplification and practicalization of the provisions of
the Holy Qur’an and their application to day to day life of the Muslim. These collection of practices
have been documented by the companions of the Prophet and scholars in Islam into what is called
Hadith, as a reference point on ‘dos’ and ‘don’ts’ in Islamic law.
5.2.3 Ijma’
Ijma’a as a source of Islamic Law is the consensus of the jurists or scholars in a particular age on
a particular question of law. Ijma’a is resorted to only when An,nass (Qur’an and Sunnah) are
silent on a particular issue.
5.2.4 Qiyas
Qiyas is the analogical deduction of jurists/scholars. While Ijma’a is the consensus of celebrated
jurists, the individual opinion of the jurists is arrived at based on Qiyas (analogical deductions).
The analogical deduction of the scholars (Qiyas) is based on similarity between a matter in which
there is Nass (provision of the Qur’an and Sunnah) and a new one that there is not, or Nass is
silent. For example, alcohol is expressly prohibited by the Qur’an and Sunnah. But in modern
times things like cocaine and similar substance came on board and argument may arise as to
whether they are prohibited. This will be settled by Ijma of outstanding Islamic scholars by way
of Qiyas (analogical deduction).
5.3 Schools of Thought Under Islamic Law
Schools of thought (schools of Fiqh-Islamic jurisprudence), as the offshoot of Islamic

jurisprudence, are subsequent development in Islamic Law that came about with the death of the
Prophet and his companions (who actually) saw Islam in practice and the emergence of new
development on issues that are not directly and/or expressly covered by the primary sources of
Islamic Law, the Qur’an and Sunnah. Where these issues emerge, they are settled by Islamic
scholars, by way of interpretation of the provisions of the primary sources to arrive at conclusion
based on Ijma. With the passage of time Islamic scholars emerged and became prominent, even
though they were not with the Prophet of Islam in his life time, but because they have become
prominent, their interpretation of issues was later tied to their names as schools of thought. The
recognized schools of thought are the Maliki School, Hannafi School, Shafii School and the
Hambali School. Imam Malik, Imam Abu Hanifa, Imam Shafi’i and Imam Hambali are top four
(4) jurists and exponents of Islamic jurisprudence. They became so prominent in Islamic
jurisprudence to the extent that they founded schools of thought for the interpretation and
exposition of the traditions and teachings of traditions/Sunnah of the prophet of Islam, Prophet
Muhammad (P.B.U.H). The schools later became named after them as the -Maliki School, Hannafi
School, Shafii School, and Hambali School.
5.3.1 Maliki School
The founder, whose name was given to the school, was Imam Malik Ibn Anas (born in the year 93
A.H), a Madina born great Islamic scholar and teacher, who has written so many books, the most
prominent of which is the Muwatta, a book of Hadith on the teaching and practices of the Holy
Prophet of Islam. He was a Tabi’-Tabi’, a person who saw the successors of Sahaba (companions
of the Prophet). He was given the nick name of Imam Dar al-Hijra. As a matter of fact, scholarship
ran through the family of Imam Malik in that his father, Anas, was also a great scholar of Hadith.
The contribution of Imam Malik and the Maliki School to Islamic Law is tremendous and would
not be over emphasized.
5.3.2 Hannafi School
The Hannafi School was founded by and traced to Imam Nu’man Ibn Thabit Abu Hanifah (born
in the year 80 a.h), who was an Iraqi scholar in Kufa, Iraq. Kufa, during the time of Abu Hanifah,
had become a well known seat of learning. It became so because of the legacy of Abdullahi Ibn
Mas’ud, a companion of the Prophet, an a great scholar of the Qur’an and Sunnah, who was posted
there from Madina as a judge. Imam Abu Hanifa was a Tabi’, who saw and lived with Sahaba (the
companions of the Prophet) and has contributed greatly to the development of Islamic
jurisprudence.
5.3.3 Shafii School
This school was founded by Imam Muhammad Idris Al-Shafii’who was born at Gaza, Palastine
(in the year 150 A.H) even though raised in Mecca from the age of 10. He was a student of Imam
Malik and had memorized the Muwatta of Imam Malik. His line of thought was very close to
that of Imam Malik, and was once quoted to have said that: “There has never appeared on earth a
book that is closest to the Qur’an than the book of Maliki.” He has contributed so much in
Islamic Jurisprudence. The most famous of his books is the Risala. He was an expert in both
Maliki and Hannafi Schools of though.
5.3.4 Hambali School
Imam Ahmad Ibn Hambal was the founder/leader of the Hambali School (born in the year 164
A.H). He was brought up in Baghda, Iraq. He was famous as a scholar of Hadith in his time. He
was a student of Imam Shafii and other great Islamic scholars of his time. One of his famous
works on Hadith was the Musnad. His contribution to Islamic jurisprudence is indelible.
5.4 Application of Law Schools of Thought in Nigeria
To achieve uniformity in the application of Islamic Law in the Nigerian judicial system, the
applicable school of thought on any legal issue in Nigeria is the position of the Maliki School.
This is the position taken by the Supreme Court in Alkamawa v. Bello (1998) LPELR-424 (SC)
CHAPTER 6
JUDICIAL PRECEDENT
6.1: Meaning and Application of the Doctrine of Judicial Precedent (Stare Decisis):
The doctrine of judicial precedence is the adherence by a court to a previous judicial decision
and applying same as a guide when deciding subsequent cases with similar issues of facts.
Judicial precedent refers to the body of rules and principles of law formulated over the years
through the decisions of the courts as governing specific legal situations. Judicial precedent is
also called Case Law or Judge-made Laws. The application of the doctrine of judicial precedent
supports the view of John Salmond that “Judges do more at times apply existing rules and
sometimes they create entirety new principles. Courts then have the power of developing the new
at the same time that they administer it!” To help the reader to understand how the application of
judicial precedent works, it will be appropriate to discuss the types of precedents and how they
are applied.
6.2 Types of Judicial Precedents:

There are two types of judicial precedents, namely, (a) binding precedent, and (b) persuasive
precedent. These are discussed below:
6.2.1 Binding Precedent:

In the trial of cases (whether civil or criminal), the Judge makes findings of fact, decides what is
to happen to the parties and gives his reasons for his findings of fact. The Judge will also give his
reasons for any ruling on the issues involved e.g. Negligence, Breach of Contract, vicarious
liability, etc. Those reasons constitute precedent (also called stare decisis) for other courts. If in
the future, another case with similar facts or similar issues arises, Counsel in that later case may
draw the attention of the latter court to the relevant decision of the earlier court and urge it to
follow that earlier decision in resolving the present case. If the present court is lower in hierarchy
to the earlier court that gave the earlier decision, it will be said that the decision of that earlier
court is a binding precedent to the present court. In other words, the present court is under
obligation to follow that earlier decision as a guide in deciding the present case.
6.2.2 Persuasive Precedent:

On the other hand, it may happen that both the facts and the issues in an instant case may be
similar to the facts and issues in the earlier case; and Counsel in the instant case may also draw
the attention of the instant court to the relevant decision of the earlier court and urge it to follow
that earlier decision in resolving the present case. A lower court will still be bound to follow the
decision of a higher court even if the higher court’s decision was given per incuriam.3 In Ossom
3
See N.E.P.A. v Onah [1997] 1.S.C.N.J. 220; Emerah & Sons Ltd v. AG. Plateau State (1990) 4 NWLR (Pt. 146)
788; Ogboriefon v. Ogboriefon CA/I/218/03 delivered on 2nd day of March, 2011.
v. Ossom4 it was held that a lower court may depart from its previous decision given per
incuriam, but that it cannot decline to be bound by decisions of a higher court even if the
decision of the higher court was reached per incuriam.
However, if the present court is of coordinate jurisdiction with the court that gave the earlier
decision, it will be said that the decision of that other court is a persuasive precedent to the
instant court. In other words, the instant court is free to follow that earlier decision, or to refuse
to follow it. As such, the judgment of a State High Court is a persuasive precedent and not a
binding precedent to another State High Court or a Federal High Court.
6.3 How to determine the ratio decidendi of a case from the obiter dictum:
The principle of law on which a judicial decision is based is called the ratio decidendi (i.e. the
reasoning for the decision). The ratio decidendi is therefore founded on the substance of the
case. Any other ancillary pronouncement which is not founded on the substance of the case will
not form the reasoning for the decision. Such ancillary pronouncement is referred to as obiter
dictum. Therefore, the following points are considered in determining the ratio decidendi of a
case:
(a) The reasons for the decision as stated by the Judge;
(b) The principle of law stated by the Judge as that on which the decision is based; and
(c) The actual decision in relation to the material facts.5
It is the ratio decidendi of a case that is binding. Obiter dictum is not binding. By the operation
of the doctrine of stare decisis (judicial precedent), the decisions of higher courts of the land are
binding on the lower courts in the land. Also decisions of courts of coordinate jurisdiction are
persuasive as between those courts.6 The following points are noteworthy:
(a) The part of the judgment of a higher court that binds a lower court obligatorily and also
binds coordinate courts persuasively is the ratio decidendi of the case (i.e., the principle of
law on which the judicial decision is based).
(b) The other non-binding part of the judgment (called obiter dictum) cannot be a judicial
precedent because it is not the basis of the reasoning of the court.
(c) Obiter dictum (singular) or obiter dicta (plural) refers to any other non-binding
pronouncement on law made in the course of a judgment.7
4
(1993) NWLR 678
5
See Agbai v Okogbue [1991] 9/10 SCNJ 49.
6
On ‘binding’ or ‘persuasive’ status of judicial precedents see Global Transport Oceanico S.a. & Anor v Free
Enterprises Nig. Ltd [2001] 2 S.C. 154; Osakwe v. Federal College of Education (Technical) Asaba (2010) 10
NWLR (Pt. 1201) 1 at 34.
7
For distinction between ratio decidendi and obiter dictum see the following cases: Bamgboye v. University of
Ilorin [1991] 8 NWLR (Pt. 207) 1; Agbai v Okogbue [1991] 9/10 SCNJ 49; Oshodi v Eyifunmi [2000] 7 S.C. (Pt. 11)
145.
6.4 Advantages of the Doctrine of Stare Decisis:
The application of the doctrine of stare decisis has advantages, including the following:
(a) The doctrine frees the law from arbitrariness;
(b) It saves the Judges time and helps to obtain justice;
(c) It makes it possible to make logical conclusions on the current position of the law;
(d) It places a sense of obligation on the inferior courts to follow the decisions of the superior
courts. In this way there is uniformity of standards in the administration of justice. This
also helps to maintain respect for the legal profession.;
(e) It enables the court to maintain consistency, certainty and scientific development of the
law. This is because if each new case is decided without any consideration of prior cases,
law would lose its scientific characteristic as the possibility of prediction, which is the basis
of science, would disappear.
(f) It enables the legal expert to exclude the layman from his field since it is too technical for
the layman to approach.
(g) It enables lawyers to find the law and advise their clients accordingly.
(h) It helps to keep public confidence in the judiciary since they know that like cases would be
decided alike.
6.5 Disadvantages of the Doctrine of Stare Decisis:

The disadvantages of application of the doc trine of stare decisis include the following:
(a) It helps to perpetuate a bad decision.
(b) Where the law reporting system is defective, the application of the doctrine also becomes
defective.
(c) There is no guarantee that all relevant authorities have been exhausted in arriving at a
decision
(d) It enables Judges to make laws (which is ordinarily the responsibility of the legislature).
(e) The doctrine operates only to the extent that a judge is not able to distinguish the case before
him from the earlier precedent that he is being urged to follow.
6.6 Res Judicata:

A judgment consists of the following: (a) statement of the facts; (b) a statement of the issue or
issues to be determined; (c) a discussion of relevant principles; and (d) The judgment itself
embodying decision or order of the court. The last aspect, i.e., the decision or order of the court,
is binding on the parties to the case only. It is not binding in subsequent cases between other
parties. As between the parties to the case, the subject matter is res judicata i.e. finally decided
and not to be subjected to further adjudication. It is a settled issue between them which cannot be
re-litigated between them in any other court.
6.7 Differences between Res Judicata and Stare Decisis:
(a) Res judicata normally binds only the parties and their successors or privies but stare decisis
binds everyone including those not before the courts in other cases.
(b) Res judicata applies mainly to matters of fact while stare decisis applies to points of law.
(c) Res judicata comes into force after the time allowed for appeal has lapsed but stare decisis
takes effect immediately the judgment is delivered.
d. Res judicata applies to all courts while stare decisis applies only to the higher courts
established to apply adjectival common law.
6.8 Courts to which the doctrine of judicial precedent does not apply:
The doctrine of judicial precedent (stare decisis) is of common law origin. Therefore, it operates
only in courts that apply adjectival common law, such as Magistrates Courts, High Courts (and
their coordinate courts), Court of Appeal and the Supreme Courts. But it does not apply in the
following courts:
(a) Customary courts: Stare decisis does not apply to customary courts because the laws of
the various States empower customary courts to administer customary law provided they
are not repugnant to natural justice, equity and good conscience nor incompatible either
directly or by implication with any written law in force.
(b) Area Courts: Stare decisis does not apply to Area Courts because just like in the case of
customary courts, they deal with customary law matters, though they only exist in Northern
Nigeria.
(c) Sharia Courts: The Sharia Courts exercise original jurisdiction over matters of Islamic
personal law. The central focus of the Sharia courts system in Nigeria is the administration
of Islamic law. Due to the nature of Islamic law, stare decisis does not apply to its
administration.
(d) Sharia Court of Appeal: The Sharia Court of Appeal is an appellate court empowered to
administer Islamic personal law8 of the Maliki School as customarily interpreted at the
place where the trial at first instance took place. Therefore, stare decisis does not apply to
the Sharia Courts.
There are judicial decisions to the effect that stare decisis does not apply to customary courts,
Area Courts and Sharia Courts. For example, in Olalekan v. Commissioner of Police,9 the
Supreme Court held that the absence of any reference to common law as one of the applicable
laws in the customary courts of Western Nigeria excludes its application in the customary courts.
Similarly, in Ogo v. Ogo10 it was held that the Eastern Nigeria customary courts are not bound
and expected to observe strict common law rules of pleadings.
8
Constitution of the Federal Republic of Nigeria 1999, ss. 262, 277.
9
(1961) NMLR 215.
10
(1964) NMLR 117.
6.9 The doctrine of Judicial Precedent and the hierarchy of Courts:
One of the implications of the doctrine of judicial precedence is that the courts are hierarchical
from the highest court to the least court. Some of the courts in this hierarchy will be discussed
below.
6.9.1 Supreme Court of Nigeria:

The Supreme Court of Nigeria is a superior court of record and the apex court in the land. It is
established under the Constitution11 with both original12 and appellate13 jurisdictions. All other
courts in Nigeria are subordinate to the Supreme Court of Nigeria and accordingly, by the
doctrine of stare decisis the decisions of the Supreme Court of Nigeria in any issue must be
followed and applied by all other courts in Nigeria when faced with similar issues.
The Supreme Court of Nigeria occupies the position of Judicial Committee of the Privy Council
before the abolition of the latter in 1963. The Supreme Court would normally treat its previous
decisions with greatest respect, but it would depart from such decisions where the interest of
justice so demands. Therefore its previous decisions are not absolutely binding on it. For
instance, in Johnson v. Lawanson14 the Supreme Court overruled an earlier decision given by the
Privy Council in Maurice Goualin v Aminu. Instances when the Supreme Court can overrule
depart from its previous decisions include the following:
(a) Where the judgment is obtained by fraud or deceit either in the court or if one or more of
the parties misleads the court;
(b) Where the judgment is a nullity;
(c) When it is obvious that the court was misled into giving judgment under a mistaken belief
that the parties consented to it;
(d) Where the court is of the opinion that it is in the interest of justice.15
The position of the Supreme Court is analogous to that of the English House of Lords. The
House of Lords was formerly bound by its previous decisions until the passing of the Practice
Direction on the 26" of July 1966 - The direction provides.
“Their Lordship regards the use of precedent as an indispensable foundation upon which
to decide what is the law and its application to individual cases. It provides at least some
degree of certainty upon which individuals can rely in the conduct of their affairs as well
11
Constitution of the Federal Republic of Nigeria 1999, s. 230.
12
ibid, s. 232.
13
ibid, s. 233
14
(1971) 1 All NLR 56.
15
See generally Aqua Limited v. Ondo State Sports Council (1988) 10-11 SCNJ 26; Oduola v Coker (1981) 5 S.C.
197; Bucknor-Maclean v Inlaks (1980) 8-11 SC 1; Shell B.P v. Jammal Engineering (Nigeria) Limited (1974) 1 All
NLR 542; Owumi v. PZ Nigeria Ltd (1974) 1 All NLR (Pt. 11) 107; Adegoke Motors Ltd v Adesanya (1989) 5 SCNJ
80; Igwe v. Kalu (2002) 7 SC (Pt 11) 236 at 244; Abu v. Odugbo (2001) 7 SC (Pt. 1) 168; Oko v. Oko 1974 3 SC;
Idehen v. Idehen (1991) 6 NWLR (Pt 198) 382.
as the basis for orderly development of legal rules. Their Lordships nevertheless
recognise that too rigid adherence to precedent may lead to injustice in a particular case
and also unduly restrict the proper development of the law. They propose therefore, to
modify their present practice and while treating former decisions of this court as normally
binding to depart from a previous decision when it appears right to do so.”
6.9.2 The Court of Appeal:

The Court of Appeal is a superior court of record and next in rank below the Supreme Court of
Nigeria. It is established under the Constitution16 with both original17 and appellate18
jurisdictions. Appeals lie from the Court of Appeal to the Supreme Court. Accordingly, by the
doctrine of stare decisis, the decisions of the Court of Appeal may be appealed before the
Supreme Court of Nigeria, Similarly, appeals lie to the Court of Appeal from the decisions of the
Federal High Court, National Industrial Court, High Court of the Federal Capital Territory
Abuja, High Courts of the States, Customary Courts of Appeal of the FCT and of the States,
Sharia Courts of Appeal of the FCT and of the States, and the decisions of a Courts Martial.
The Nigerian Court of Appeal stands in a position analogous to the English Court of Appeal in
the English hierarchy of courts. The Nigerian Court of Appeal follows the position of the English
Court of Appeal in the treatment of its previous decisions. The English Court of Appeal (Civil
Division) is bound by its own previous decisions subject to three exceptions stated in Young v.
Bristol Aeroplane Co.19 These exceptions are as follows:
(a) The court is bound to refuse to follow a decision of its own, which though not expressly
overruled, cannot in its own opinion stand with a decision of the House of Lords.
(b) The court is entitled and bound to decide which to follow of two conflicting decisions;
(c) The court is not bound to follow a decision of its own if it was satisfied that the decision
was given per incuriam.
It should be noted that by virtue of the decision of the West African Court of Appeal in Osumanu
v Seidu20 these three exceptions stated in Young’s Case are also applicable to the Nigerian Court
of Appeal in the determination of civil cases.
In criminal matters, the position of the Court of Appeal with regard to the doctrine of judicial
precedent is the same as the position of the English Court of Appeal as stated in R v. Taylor21 to
the effect that the English Court of Appeal is not bound by its own previous decision but the
court is very reluctant to depart from them. This position has been adopted as part of our laws in
16
Constitution of the Federal Republic of Nigeria 1999, s. 237.
17
ibid, s. 239.
18
ibid, s. 240.
19
[1944] KB 178.
20
(1949) 12 WACA 437.
21
(1950) 2 K.B. 368.
Nigeria through the decision in Motayo v Commissioner of Police,22 where it was held that ‘this
court will adopt in criminal matters the principle enunciated in the court of criminal appeals in
the case of R v. Taylor (1950) 2 K.B. 368 and is not invariably bound by its previous decisions.”
With regard to the Court of Appeal, the following points should be noted carefully:
(a) The Court of Appeal is bound by the decisions of the Judicial Committee of the Privy
Council (JCPC) given before it ceased to be part of the Nigerian hierarchy of courts;
(b) The Court of Appeal would treat previous decisions of the Federal Supreme Court and the
West African Court of Appeal as its own previous decisions since they occupied equal
positions in the hierarchy of courts when those courts formed part of the Nigerian hierarchy
of courts;
When the Court of Appeal is confronted by two conflicting decisions of the Supreme Court, it
could either,
(i) Choose the later decision as it would be seen to have impliedly overruled the earlier
decision; or
(ii) It may choose any of them; or
(iii)it may state a case to the Supreme Court.
However, on the authority of Osakwe v. FCE23 it is the latter decision that the Court of Appeal
must follow.
7.9.3 High Courts (Federal and States):

Each of the various High Courts (i.e. Federal High Court, High Court of the FCT, and High
Courts of the States) is a superior court of record. There are also other superior courts of record
that are of coordinate jurisdiction with these High Courts. The coordinate courts include the
National Industrial Court, the Customary Courts of Appeal of the FCT and of the States, Sharia
Courts of Appeal of the FCT and of the States. Because these courts have coordinate
jurisdictions with one another, an appeal cannot lie from one of them to the other. However, by
the doctrine of stare decisis these courts are strictly bound by the decisions of the Court of
Appeal and the Supreme Court.24 Appeals lie from each of them to the Court of Appeal. Where
the High Court of a state is exercising Federal jurisdiction, its decision is binding on the
Magistrate Court of that state and on the Magistrate Courts of other states where such courts are
exercising federal jurisdiction.
With respect to State matters (matters within the legislative competence of a State), the High
Court of a State does not form part of the hierarchy of courts for any other State. This is because
as in other Federations, a State is regarded as a foreign country in relation to another for purposes
of the doctrine of precedence. Therefore, decisions of the High Court of a State given in the
22
14 WACA 114.
23
(supra).
24
See A-G Ogun State v. Egenti (1986) 3 NWLR 256; Atolagbe v. Awuni (1997) 9 NWLR 536.
exercise of State jurisdiction are not binding on any court in another State. In Olawoyin v. A-G
(Northern Region)25, it was held that a Judge of the High Court is not bound by the decision of
other courts of co-ordinate jurisdiction. In exercise of federal jurisdiction the High Court of one
State binds the Magistrate and District Courts of other States. A High Court Judge is not bound
by his previous decisions nor is he bound by a decision of another Judge of the court.
When two or more Judges constitute the Northern Nigeria High Court sitting as a court of
appeal, it is equivalent to the divisional court of the High Court of England. Such divisional court
whether exercising civil or criminal jurisdiction adopts the principle in Young v. Bristol
Aeroplane.26 Accordingly, a High Court in the North sitting as a court of appeal and constituted
by two or more Judges is bound by its previous decision subject to the exceptions in Young v.
Bristol Aeroplane.
The High Court is bound by decisions of the West African Court of Appeal and the Federal
Supreme Court given before their abolition. These courts were equivalents of the present Court
of Appeal. Also the High Courts are bound by the decisions of the Judicial Committee of the
Privy Council given when that court formed part of the Nigerian hierarchy of courts.
6.9.4 Magistrates/District Courts:

In the Northern States of Nigeria, the Magistrate Courts are empowered to exercise criminal
jurisdiction over criminal matters while District Courts are empowered with civil jurisdiction. In
practice however, both the ‘District Courts’ and the ‘Magistrates Courts’ are of the same rank
and structure, except for the difference in their jurisdictions. A Magistrate Court in the North is
referred to as ‘Magistrate Court’ when it is conducting the trial of criminal matters. But when it
is conducting trial of civil cases it is referred to as a District Court. By the doctrine of stare
decisis these being inferior courts, are bound by the decisions of superior courts. Appeals lie
from the decisions of the Magistrates Courts and the District Courts to the appropriate High
Court of a State or of the FCT. Magistrate courts are neither bound by their own previous
decisions nor bound by decisions of other Magistrate courts whether or not in the same State.27
All the magistrate courts of a State are courts of co-ordinate jurisdiction. Also the Magistrate
court of one State and the Magistrate court of another State are of co-ordinate jurisdiction.
Therefore, their decisions are not binding on each other but only constitute persuasive authority.
6.9.5 Customary Courts /Area Courts:

These are not concerned with the doctrine of precedence as they are presided over by laymen,
not sufficiently knowledgeable in the general law.28
25
(1960) NRWLR 63.
26
(Supra).
27
See generally, Board of Customs & Excise v. Bolarinwa (1968) NMLR 350.
28
See Osu v. Igiri (1988) 1 NWLR 221 at 230.
6.10 Conditions for the application of the doctrine of judicial precedent:
For the doctrine to work effectively, the following must be in place:
(a) a settled hierarchy of courts; and
(b) an efficient law reporting system.29
6.11 Exceptions where a lower court may refuse to follow a higher court:
The general rule under the doctrine of stare decisis is that a lower court is bound to follow the
decisions of a higher court in the hierarchy of courts. However, there are exceptions to this rule.
The exceptions are:
(a) Where the decision of the higher court has been overruled;
(b) Where the decision of the higher court is in conflict with the decision of another court
which is above that of higher court in the hierarchy: or
(c) Where there are two conflicting decisions of a higher court or of courts of equal standing
the lower courts are entitled to choose which to follow, considering the facts of the case
before it.
However, it should be noted that where a court can distinguish the case before it from the
decision it is being urged to follow by precedent, then the doctrine of judicial precedent (stare
decisis) will not apply.30
6.12 Position of English Courts decisions / Foreign Courts’ decisions in Nigerian Courts:
No English court or any other common law court forms part of the Nigerian hierarchy of courts.
As such, no Nigerian court is bound by a decision of any English court under the doctrine of
judicial precedence. Consequently, the decision of English courts and other foreign courts are
merely persuasive authority in Nigeria as Nigerian courts are to apply rules that in their opinion
constitute the correct rules of common law, or equity and not necessarily rules stated as common
law or equity by particular foreign courts. It was in furtherance of these objectives that the High
Court of the former Western State (per Berkley J.) held in Alli v. Okulaja31 that it was not bound
by any decision of the Court of Appeal of England, since this country is now an independent
sovereign State. He stated further that the judgment of an eminent Judge in England would
certainly be of most persuasive authority and would be followed except the court feels otherwise
strongly against the ratio decidendi of such decision.32 The position is the same with the
common law of other countries especially those whose statutory rules are also identical in
wording with corresponding rules in force in Nigeria e.g. the Nigerian Criminal Code was based
on the Queensland Criminal Code (Australia) and so both have identical provisions. Cases
29
See Royal Exchange Assurance v Aswani Textiles Ind Ltd. [1991] 12 NWLR (Pt. 176) 636.
30
See Reed v Lyons & Co (1947) A.C. 1567.
31
(1970) 2 All NLR 35 at 44.
32
See also Eliochin (Nigeria) Ltd v. Mbadiwe (1986) 1 NWLR (Pt. 14) 47; Oladiran v. State (1986) 1 NWLR (Pt.
475); Ajomale v. Yadnat (No. 2) (1991) 5 NWLR (Pt. 191) 266; Nishizawa v. Jethwani (1984) 12 S.C.
decided by Queensland courts on the interpretation of those identical provisions are therefore of
persuasive authority in Nigerian courts.
6.13 Position of works of Academics and Textbook writers:

These are merely persuasive and a Judge is not bound to follow such opinion.
6.14 Position of International Treaties:

Where an international obligation is created by a treaty which has been willingly acceded to by
Nigeria, and has been incorporated into our laws, such has the force of law and is binding.33
6.15 Distinguishing:
Although a trial court is bound by the decisions of higher courts on similar issues, where a Judge
is convinced that the issues are not the same or alike, he may refuse to follow the decision of the
higher court by distinguishing that case from the case at hand.34
33
See Abacha v. Fawehinmi (2000) 4 S.C. 400.
34
See Board Of Custom & Excise v. Bolarinwa (supra).
CHAPTER 7
INTERNAL CONFLICT OF LAWS
7.1 Meaning of Internal Conflict of Law

Nigeria is made up of a vast geographical area comprising of various tribes and ethnic groups.
These tribes all have their different cultures and traditions binding individuals subject to or
belonging to each tribe. It has been emphasized that the sources of Nigerian law include English
law and customary law. The question that naturally comes to mind is when or how do the courts
determine which law governs a particular situation or a particular person between those two
different systems of law. Also assuming that it is customary law that is applicable to a situation,
the issue of which particular customary law should be operated comes into focus. These are the
situations necessitating the rules on conflicts of laws. The scenario presents two types of
situation before the law, namely: (i) Conflict between English and customary law; and (ii)
Conflict between different systems of customary law. The study of internal conflict of laws deals
with issues where different local laws affect the same subject matter or the same situation, and
how the courts will determine which of such laws should govern the particular subject matter or
the particular situation.
7.2 Conflict between English Law and Customary Law

The various High Court Laws provide for how to resolve conflicts between English Law and
Customary Law. The applicable law on this can be found in the various High Court Laws. These
provisions are quite similar but for the differences in the classification of parties for the purpose
of determining who should be bound by the law. These provisions can be understood from the
specific wording of the respective Laws of the different regions as discussed below.
(a) Western States: The High Court Law applicable to the then Western States classified those
that can be parties to disputes before the court as Nigerians and Non Nigerians.35
(b) Eastern States: The High Court Law of the then Eastern States classified parties as
“persons of Nigerian descent and persons who are not of Nigerian descent.”36
(c) Lagos and Northern Nigeria: The law here classified parties as ‘natives and non
natives.’37
The next question then is, who is a native and who is a non-native? The old interpretation Act (s.
3, Cap. 89) defined the word ‘native’ as follows:
“Native includes a native of Nigeria and a native foreigner.”
35
See Western Region Law Cap. 44; s. 3 High Court Law of Mid Western States.
36
See. s. 20, High Court Law of Eastern Nigeria (Eastern Nigerian Law 1963).
37
See High Court Law of Lagos State, 1973 Cap. 52, s. 26.
A native of Nigeria means any person whose parents were members of a tribe or tribes
indigenous to some parts of Nigeria, and the descendants of such persons; and includes any
person one of whose parents were members of such a tribe. Native foreigner means any persons
(not being a native of Nigeria) whose parents were members of a tribe or tribes indigenous to
some parts of Africa and the descendants of such persons, and shall include any person one of
whose parents were members of such a tribe. In the light of these several definitions, a “non
native” is defined as “any person who is not a native of Nigeria or a native foreigner.”38
From the definitions given above, it can be deduced that a Nigerian falls under the definition of
natives as well as Africans. Also the expression ‘native foreigner’ falls under the definition of
any person ‘other than a Nigerian.’ Any other person apart from the above would come under the
definition of ‘non-native.’
7.2.1 The applicable Law

In this discussion the High Court Law of Lagos State will be used as a guide to explain the
import of the various applicable rules. Section 26 High Court Law of Lagos provides among
other things, as follows:
26 (2): “Customary law shall be deemed applicable in causes and matters where the
parties there are natives and also in causes and matters between natives and non natives
where it may appear to the court that substantial injustice would be done to either party
by a strict adherence to any rule of court which would otherwise be applicable.”
26 (3): “No party shall be entitled to claim the benefit of any customary law if it shall
appear either from express contract or from the nature of the transaction out of which any
suit or question may have arisen that such a party agreed that his obligations in
connection with such transactions should be exclusively regulated otherwise than by
customary law or that such transactions are transactions unknown to customary law.”39
These two sub-sections contain the rules applicable to disputes between natives, and between
natives and non-natives. This is also similar to the position of the law in other regions of Nigeria
under their respective applicable laws.
7.2.2 Cases of Disputes between Natives

The general rule regarding the adjudication of disputes between natives can be deduced from the
provisions of s. 26(2) of the High Court Law of Lagos State 1973. The general rule is similar to
the position of the law in other regional laws to the effect that disputes between natives are
38
The reader should note that this old interpretation Act is used because there is no definition of native and non
native in the present interpretation Act 1990. But the definition in the old Act is similar to that contained in the latter
regional laws.
39
High Court Law of Lagos State, Cap. 52, Laws of Lagos State 1973, s. 26 (2) & (3).
governed by customary law. Thus, in Labinjoh v. Abake40, it was held that “the general rule is
that if there is a native law and custom applicable to the matter in controversy and if such law
and custom is not repugnant to natural justice, equity and good conscience or incompatible with
any local ordinance and if it shall appear that it is intended by the parties that the obligations
under the transaction should be regulated by English law, the matter in controversy shall be
determined in accordance with such native law and custom.”
However, there are exceptions to this general rule on the application of customary law to
disputes between natives. Some of the exceptions are as follows:
(a) From the provisions of s. 26(3) HCL of Lagos, it is clear that any agreement to be bound
by English law would remove the matter from the ambit of customary law.41 But it should
be noted that an agreement to be bound by English law operates only in respect of the
particular subject matter for which it is made, and not in respect of all other transactions
entered into by the party who made the agreement.42
The implications of this first exception above are as follows:

(i) Where a party had agreed to be bound by English law in a transaction, he cannot claim the
benefit of customary law in a dispute concerning that transaction even though the dispute is
between him and another person who was not privy to the agreement.43
(ii) An agreement to be bound by English law binds only the person who made the agreement and
his successor in title. It has no effect on a person who was not privy or party to the agreement.44
(iii) An agreement to be bound by English law may be expressly made by the parties or be implied
by the courts from the transaction or conduct of parties.45
(b) The second exception to the general rule is that a transaction unknown to customary law
would be governed by English law.
In respect of this second exception, it is undisputable that in present day Nigeria, activities
abound which hitherto were unknown to customary law. Various forms of contracts have arisen
with the advent of the computer age and various technological developments have resulted, for
instance, in novel areas like creation of copyrights, automobile, immigration, fashion etc. Many
40
(1924) 5 NLR.
41
See Griffith v. Talabi (1948) 12 WACA 371; Oko v. Oloto 20 NLR 121.
42
See Nelson v. Nelson (1951) 13 WACA 248 contra. Cole v. Cole 1898 1 NLR 15, and Asiata v. Goncalo (1900) 1
NLR 10. See also Smith v. Smith (1974) 5 NLR 105; Hastrup v. Coker (1927) 8 68; Re. Enodi (1945) 18 NLR 1;
Bamgbose v. Daniel (1954) 3 NLR 561.
43
Green v. Owo 1936 13 NLR 43.
44
Pillars v. Baffor (1909) REN. 549.
45
Green v. Owo (1936) 13 NLR. 43.
of these situations cannot be handled by customary law, as customary law has no rules governing
them.
In cases involving such novel areas of existence, English law would be applied by the courts
even if the dispute involves purely natives. A transaction of a nature not considered to be subject
to any existing native law and custom accepted in the community as binding will be considered
to be a transaction to which customary law does not apply. For example, a transaction to which
the use of a promissory note was essential has been held to be unknown to customary law.46
The implications of this second exception are as follows:

(a) Where a conveyance in English form constitutes an essential part of a transaction, the
transaction is treated as unknown to customary law.47
(b) The fact that the subject matter or situation concerned has come to the knowledge of the
local community does not mean that the transaction is known to customary law.48
(c) In the past, the use of writing automatically removed a transaction from the purview of
customary law. Thus, in Egbuche v. Chief Idigo49, it was held that an agreement in writing
concerning the sale of land removes the matter from the control of customary law. However
in Rotibi v. Savage50 this absolute position was objected to by Waddington J. when he
warned against the application of the principle that a document imports English law “where
the documents amount to no more than the kind of ‘paper’ which most natives nowadays
like to have as evidence of a money transaction and which at this day is, I suppose, quite a
familiar object in most native courts and frequently bearing an impressive array of stamps.”
7.2.3 Cases of Succession and Inheritance

The two exceptions discussed above constitute the only statutory exceptions to the general rule
that cases between natives are governed by customary law. However the problem of choice of
law is also sometimes presented in cases of inheritance. Available authorities show that in
practice the courts sometimes apply English law to such cases despite the fact that they are not
governed by statute. The following instances may be used to illustrate this trend.
(a) The making of a Will in English form has often led to the application of English law to the
estate of a deceased native. For instance, in Apatira v Akanke51 the deceased’s Will suffered
a technical flaw which rendered it invalid under the Wills Act and Counsel argued that it
should be admitted to probate under Islamic law. It was held that since the testator had
46
Bakare v. Coker (1935) 12 NLR 15
47
Green v. Owo (supra).
48
Salawu v. Aderibigbe (1963) 1 NNLR 80.
49
(1934) 11 NLR 140.
50
(1944) 17 NLR 77.
51
(1944) 17 NLR 149.
clearly intended his Will to take effect under English law, it was to be judged by the
standards of that law.52
Despite the seeming conflict in the various line of cases53, the trend of the court was that it
inferred an intention for English law to apply to a Will under the then Wills Act 1882, simply
because the making of a will in writing is unknown to customary law, provided such inference
can be done without rendering nugatory the provisions of the Wills Act.54
(b) Suits on intestacy also come within the ambit of situations where English law is applied.
At first, judicial decisions reflected a tendency to create an absolute rule that English law
should govern the estate of a native who died intestate but had been married in a Christian
church in his lifetime. In some cases, the courts had held that such deceased person should
have his property distributed in accordance with English law rather than in accordance with
customary law.55
However, some other judicial decisions seem to show that the type of marriage entered into is
not conclusive of the type or nature of distribution of estate preferred by a deceased, rather, that
the type of marriage entered into by a deceased in his lifetime is only one of the many factors to
be considered in determining the applicable law.56
7.2.4 Cases of Disputes between Natives and Non-natives

As earlier stated, a non-native is defined as a person who is not a native of Nigeria or a native
foreigner i.e. a person who is neither a Nigerian nor an African, e.g. a Briton, American, Russian,
Malaysian, etc. The general rule as deducible from s. 26 (2) HCL of Lagos 1973 is that disputes
between natives and non-natives are governed by English law. In Koney v. United Trading Co.,57
it was held by West African Court of Appeal that under the relevant law, a case between a native
and a person who was not an African is governed by English law. However, there is an exception
to this rule. The exception is derivable from section 26(2) HCL of Lagos 1973 and it is to the
effect that customary law would be applied to cases between natives if the application of English
law would cause substantial injustice to either party.58
This exception to the rule raises some questions such as the following:
52
See also Vaughan & Ors v. George (1942) 16 NLR 85; Sogbesan v. Adebiyi (1941) 16 NLR 26. Contra: Balogun
v. Balogun (1935) 2 WACA 290; Jacobs v. Oladunni Bros (1935) 12 NLR 1.
53
Such as Balogun v. Balogun (1935) 2 WACA 290; Jacobs v. Oladunni Bros (1935) 12 NLR 1.
54
See Adesubokan v. Yunusa (1973) UILR 25.
55
See for instance, Adebola v. Kola Folaromi (1981) 3 NLR 89; Hastrup v. Coker (supra); and especially Bamgbose
v. Daniel (1954) 3 NLR 561.
56
See for instance, Ajayi v. White (1946) 18 NLR 41; Smith v. Smith (1974) 5 NLR 105; Onwudinjoh v. Onwudinjoh
(1957) 11 ERNLR 1.
57
(1934) 2 WACA 188.
58
See Nelson v. Nelson (1951) 13 WACA 248.
(a) What would be the result if the native had agreed that the transaction should be governed
by English Law?
(b) In such cases, can the court still apply customary law on the ground that substantial injustice
would be done to him by the application of English law?
(c) Would the fact that substantial injustice will be done to a non-native make the court to apply
customary law?59
It appears that a non-native is not allowed to claim the benefit of customary law since there is no
equivalent provision that where a non-native agrees to be bound by customary law, then
customary law would apply. In some cases where such benefits would have arisen in favour of
non-natives, the courts have declared such argument invalid and untenable.60 The exception of
substantial injustice is restricted to cases between natives. It does not apply to cases between
non-natives.61
7.2.5 Cases between Natives and Native Foreigners

From the earlier definition of ‘native’, it is deducible that ‘native foreigners’ means Africans
apart from Nigerians. The law has brought them within the jurisdiction of the Nigerian courts,
and therefore, the rules applicable to Nigerians apply to them also.
7.3 Conflict between Different Systems of Customary Law

Customary law differs from community to community. The exigencies of commerce, social
interaction and modernization have also made social interaction imperative among people of
different ethnic groups. Each ethnic group has their own customary laws. Questions may
sometimes arise as to how disputes may be resolved between persons who have allegiance to
different customary laws. In other words, how would conflicts between different systems of
customary law be resolved in situations where it is clear that customary law applies? Which
particular customary law should govern the resolution of the dispute? The following illustrations
would be apposite.
(a) If a Kaduna man lives in Ile-Ife for a period of 30 years and got married in Ile-Ife to a lady
from Aba and dies intestate, what law should govern the succession to his property?
(b) If an Ibibio man got married to an Ilesha woman and the marriage was celebrated in Ilesha,
what law should the court apply in an action for the dissolution of that marriage if the action
for dissolution of the marriage is filed in Ilesha?
(c) If two Igbo men from Aba enter into a contractual relationship in Kaduna in circumstances
where customary law is assumed to apply, what law should the court apply?
59
For a detailed discussion on these questions, see A.O. Obilade: Nigeria Legal System (London: Sweet & Maxwell,
1979), p. 156.
60
See Ffones Capasman (1958) NRNLR 47; Savage v. Macfoy (1909) REN 504.
61
Cf. Osuro v. Anjorin (1946) NLR 415.
These are the types of situations that the rules relating to conflict between different systems of
customary law would try to regulate. Where customary law is the applicable law, the rules for
determining the applicable customary law should be found in the following enactments.
(1) Former Western and Mid-Western States: See section 20, Customary Law Western Region
of Nigeria Law 1959, and Customary Courts Law of Mid-Western State, including States
created out of these regions.
(2) Northern States: See sections 20 and 21 Area Courts Edict 1968 of Plateau State, as an
example.
(3) Eastern States: Magistrate Courts Law (Cap 8, Eastern Nigeria Laws) 1963, including
States created out of this region.
In all the jurisdictions in the country when customary law is applicable, the courts are directed to
apply either the law prevailing in the area of jurisdiction of the courts or the law binding between
the two parties.
The question then is: What constitutes the law prevailing in the area of the Court’s jurisdiction?
In R. v. Ilorin Native Court ex parte Aremu62, Ademola CJ rejected the view that there could be
more than one law prevailing in the court’s area and held that ‘prevailing’ means ‘predominant.’
Hence, the predominant law would be the prevailing law.
For instance, in the Ile-Ife area there are other ethnic groups residing there apart from the
indigenous people, e. g. Hausas. Ife population itself may constitute 80% of the entire
population, and therefore Ife customary law would be the prevailing customary law in the city. If
the minority law is applied, it will be applied as the law binding between the parties.
With regard to individual or personal (customary) law of an individual, there are specific ways of
determining the applicable personal law. The succession cases throw some light on how the
individual law of a party is determined. The cases indicate that a man’s individual or personal
law is that of the community to which he belongs. In Re Estate of Alayo63 it was held that where
an Ijebu woman of the Islamic faith got married under the faith and died intestate in Lagos, the
applicable customary law is Ijebu customary law on the ground that she was a native of Ijebu.
Similarly, in Tapa v. Kuka64 it was held that the law applicable to the estate of a deceased Nupe
Mohammedan in Lagos was that of a Nupe and not the law that prevailed in Lagos. But the
following points should be noted:
(1) Where a community applies both Islamic or Moslem law and ethnic customary law, the
test to be applied to determine the applicable law is the attitude of the person involved. For
instance, in Asiata v. Gongallo65 the Moslem law was applied to the estate of a deceased
62
(1950) 20 NLR 144.
63
(1946) 18 NLR 5.
64
(1945) 18 NLR 5.
65
(1900) NLR 41.
intestate resident in Lagos because in his life time he considered himself subject to Moslem
law.66
(2) A resident in a community whose law is different from that of his own community may
cease to be ordinarily subject to the latter if he integrates himself into the community in
which he had settled and regarded himself as subject to that community law.
7.3.1 Western and Mid-Western States

(a) Land Cases
With regard to land disputes arising in the Western and Mid-Western States of Nigeria (and other
States created out of those regions), s. 20 of the Customary Courts Law (Western Region of
Nigeria Law 1959) has provided the general rule, which is that the 67lex situs is the applicable
law. Lex situs is the customary law of the place where the land is situate. But there are also
exceptions to this general rule.
Exceptions to the general rule on lex situs

(a) Lex situs rule shall not be allowed to deprive an entitlement to inheritance:
The lex situs rule would be inapplicable in cases where under the lex situs, a party’s right to
occupy land by devolution on death is affected but under the rules of inheritance of any other
customary law to which the party in question is subject, he would have been entitled to beneficial
interest in the land or in the proceeds of the sale of the land. In such a case the lex situs rule
cannot deprive him of such beneficial interest except the right to occupy the land.68
(b) Succession:
Section 20 (2), Customary Courts Law (Western Region of Nigeria Law) 1959 and s. 23(2),
Customary Courts Law (Mid Western Region) provide:
“In cases and matters arising from inheritance the appropriate customary law shall, subject to
subsection (1) and (4) of this section, be the customary law applying to the deceased.”
The implication of this provision is that in succession cases the applicable law is the personal
law of the deceased. But this is subject to the following exceptions:
(a) Section 20 (2) CCL WRN Law 1959-Land causes.
(b) Section 20 (4) CCL WRN Law 1959-Cases of beneficial interest.
(c) Other Civil Maters Apart From Land or Succession - See S. 20(3) Customary Courts Law
WRN Law 1959.
The following are the applicable rules:
66
See similarly, Mariyama v. Sadiku Ejo (1961) NRNLR 81.
67
See s. 20 (1) Customary Courts Law (Western Region of Nigeria Law) 1959.
68
s. 20 (4) Customary Courts Law (Western Region of Nigeria Law) 1959.
(i) In civil cases and matters where (1) both parties are not natives of the area of jurisdiction,
the court of law binding between the parties applies.
(ii) If the transaction which is the subject of the cause or matter was not entered into in the area
of jurisdiction of the court, the law binding between the two parties applies.
(iii) Where one of the parties is not a native of the area of jurisdiction of the court and the parties
agreed that their obligation should be regulated wholly or partly by the customary law that
applied to that party, the appropriate customary law shall be the customary law binding
between the parties.
Note the following:
(1) In (i) and (ii) above, the law binding between the parties may also be law of the area of
jurisdiction of the court.
(2) In all other civil causes and matters the appropriate customary law should be the law of the
area of jurisdiction of the court. See s. 20 (3) (b) Customary Courts Law of Western States 1959.
7.3.2 Northern States

The law governing this situation in the Northern States is found in the various Area Courts Edicts
of these States with identical provisions e.g. Area Courts Edict No. 1 1967 of Kano State, or
Area Courts Edict 1963 of Plateau State.
The General Rule:

The general rule in the Northern States is that an Area Court shall apply the native law and
custom prevailing in the area of the court’s jurisdiction or binding between the parties.69 This
general rule governs mixed civil causes, but it is also subject to some exceptions.
Exceptions:
The exceptions can be found in the provisions of s. 21 of the Area Courts Edict 1968 of Plateau
State which governs mixed civil causes. A mixed civil cause is a cause in which two or more of
the parties are normally subject to different systems of customary law. For example, a cause to
which an Efik man and an Ijesha man are parties is a mixed civil cause. The following rules
apply in such cases:
(a) Succession: - Section 21(1) of the Area Courts Edict 1968 (Plateau State) provides that in
mixed succession cause other than land, the court is to apply the principle of natural justice,
equity and good conscience. In practice, the courts therefore apply the individual or
personal law of the intestate. It should be noted that in unmixed succession causes, the
general rule in s. 20 (1) applies and in the case of intestacy, the personal law of the deceased
may also be applied.70
69
See for instance, s. 20(1) Area Court Edict 1968, Plateau State.
70
See Ghamson v. Wobill (1947) 12 WACA 181.
(b) Land Causes: - Section 21 (2) of the Area Courts Edict of Plateau State provides that all
land causes whether mixed or unmixed are to be governed by the lex situs.
(c) Other Civil Causes: - Section 21 (1)(a)-(e) governs all other situations of mixed civil
causes.
The applicable law is as follows:

(i) The particular native law and custom which the parties agreed to or intended or may be
presumed to have agreed to should regulate their obligations in connection with
transactions which are in controversy before the court.
(ii) The combination of any two or more native laws or customs which the parties agreed to or
intended or may be presumed to have agreed to or intended should regulate their
obligations as aforesaid; or
If the court is unable to determine the agreement or intention of the parties as stated above, then,
(iii) The court shall apply the particular native law of custom or combination of customary law,
which it appears to the court, having regards to the nature of the transaction and to the
circumstances of the case, to regulate the obligations of the parties.
(iv) Unmixed civil causes other than land or succession causes are governed by the general rule
in s. 20 (1) i.e. the law prevailing in the area of jurisdiction of the court or binding between
the parties. In Osuagwu v. Soldier71 the claim was an action between two Igbo persons
residing in Kaduna in which the plaintiff claimed the value of a box of clothing, which he
alleged he had entrusted to the defendant for safe keeping. In the Alkali court at Kaduna,
the Alkali applied Islamic law and awarded damages to the plaintiff. The defendant
appealed on the ground that Islamic law should not have applied and the contention was
upheld by the High Court.
(d) Cases before the Sharia Court Of Appeal:

Section 11 (e) of the Sharia Court of Appeal Law, (Northern Nigeria Laws) 1963
empowers the Sharia Court of Appeal in each State to require parties appearing before it
(whether or not they are Muslims) to have by writing under their hand requested the court
that heard the case at first instance to determine that case in accordance with Islamic law.
In such case, the principles earlier set out will be inapplicable.
7.3.3 Eastern States

There are no specific provisions in the Eastern State but only the general rule that the court
should administer either the law prevailing in the area of the court’s jurisdiction or binding
between the parties. We may however borrow a leaf from the specific principles in other regional
71
(1959) NRNLR 39.
laws in determining the applicable law e.g. land cases- lex situs; succession causes - personal law
of the deceased.72 In other cases apart from these, the following may be applicable rule:
(i) Where the personal law of both parties are the same but differ from the law of the area of
the court’s jurisdiction, then the personal law would normally be binding between them.73
(ii) Where one party’s individual law is the territorial law while the other’s is not, then failing
any indication of agreement or intention to the contrary, the court would normally apply
the territorial law.
(iii) Where the parties are subject to different individual laws each of which is different from
the territorial law and there is no indication of agreement or intention as to which law shall
apply then if the cause of action has sufficient connection with the area of the court’s
jurisdiction to give jurisdiction to hear the case, the territorial law in most circumstances
would be deemed to apply.
72
See Tapa v. Kuka (1945) 18 NLR 5.
73
Osuagwu v. Soldier (supra).
PART THREE: THE JUDICIARY AND JUDICIAL INSTITUTIONS
CHAPTER 8
JUDICIAL INSTITUTIONS AND MODERN SYSTEM OF COURTS IN NIGERIA
8.1 The Role of the Judiciary
The Judiciary is a creation of the Constitution. Ch.VII, Pt. I & II of the Constitution of the
Federal Republic of Nigeria, 1999, termed the judiciary as the “Judicature”. As an organ of
Government, the Judiciary plays the following roles:
a) It serves as the platform through which the judicial powers of the Federation and states are
exercised-S.6 CFRN’99;
b) It interprets the law;
c) It dispenses & administers justice;
d) It enhances, enlarges and to some extent, even makes law through case law–
8.2 The History and Development of Courts
For convenience, discussion on history and development of courts in Nigeria are divided into 3
stages, to wit: Pre-Colonial, Colonial and Post Colonial eras.
Pre-Colonial Era
Before the advent of the British rule in what is now known as Nigeria, the indigenous communities
in the territory were administered under Customary and Islamic Law. Customary Law was
operational in the South. Customs and traditions of the people were unwritten and not easily
ascertainable. Disputes then were resolved by paramount rulers-kings, chiefs, councilors and
advisers at the Kings’ courts or palaces. This is because there were no formal courts for settlements
of disputes. However, the case in the North was different. There was an organized and
institutionalized court system of government and court under the Maliki School of Islamic Law.
Colonial Era
When the colonial masters arrived, a new legal system became established to operate along side
the two indigenous systems. The British established the Consular Courts in 1863 and subsequently,
the Equity Courts, the Supreme Court for the Colony of Lagos, which was later replaced by the
Court of Civil and Criminal Justice. At a point in time, Lagos, Sierra Leone, Gold Coast (Ghana
and Gambia) under one government-Government of West African Settlement. Therefore, courts
like the West African Court of Appeal, with head quarters at Sierra Leone, was established to serve
as a court of Appeal, and appeal against its decision goes to the Judicial Committee of the Privy
Council in London. With the proclamation of the Protectorate of Northern Nigeria in 1900, more
courts came on board-the Supreme Court of the North, Provincial Courts, Customary Courts and
Native courts. By 1933, other courts like the High Court and Magistrate courts came on board.
The High Court replaced the Supreme Court. By 1943, there was one Supreme Court for the whole
federation. A Federal Supreme Court was established in 1954, even though appeal from the court
still goes to the Privy Council in London. A Muslim Court of Appeal was established in 1956 with
criminal and civil jurisdiction. The Court was later renamed as the Shariah Court of Appeal.
Post Colonial Era
The Nigerian independence of 1st October, 1960, brought about a lot of changes in the judicial land
scape. Some of the changes were:
a) In 1963, appeal from the Federal Supreme Court to the Privy Council stopped. The Federal
Supreme Court became the final appellate court in Nigeria;
b) The Western Region Court of Appeal was established after 1966 coup;
c) The Federal Revenue Court (which later became the Federal High Court) was established in
1973;
d) The Federal Court of Appeal was established in 1976; and
e) A new Constitution came on board, the 1979 Constitution;
f) The 1979 Constitution brought about the Supreme Court of Nigeria, the Federal Court of
Appeal, Federal and State High Court, Shariah and Customary Court of Appeal, and such other
courts as may be authorized by law.
8.3 Establishment, Composition, and Jurisdiction of Courts.
8.3.1 Supreme Court of Nigeria
S. 230 CFRN 1999 Established the Supreme Court
Total Justices-Not more than 22 (s.230 (2)(a) of the CFRN
To sit with at least 5 Justices (can sit with 7 Justices in Fundamental Rights; Constitutional Matters
and in its original jurisdiction-S.234 of the CFRN
Has appellate & original jurisdiction (shall not have original jurisdiction in criminal matters-S.232
of the CFRN. The Supreme Court has original Jurisdiction in disputes between Government. of
the Federation and the States or between States.
Also by virtue of Supreme Court (Additional Original Jurisdiction) Act disputes between the
President & the National Assembly, OR between the National Assembly & State House of
Assembly Or between the National Assembly & State of the Federation.
Justice must be a lawyer of not less than 15yrs.

 S.237 CFRN 1999 established the Court of Appeal

 The Court of Appeal is composed of not less than 50 Justices (the President of the Court of
Appeal and not less than 49 Justices). However, the Court is constituted when it sits with not
less than 3 justices. The Justices of the Court of Appeal must have been qualified to practise
as a legal practitioner in Nigeria and has been so qualified for a period of not less than twelve
years Section 238(3) CFRN 1999
 It has appellate and original jurisdiction;
 Appeal from Court of Appeal goes to the Supreme Court except in 2 cases:
(a)National and State House of Assembly Election Tribunal and
(b) Civil decision of the National Industrial Court
8.3.3 Federal High Court
 S.249 CFRN 1999 established the Federal High Court

 S.251 CFRN 1999 states the jurisdiction of the Federal High Court
 Jurisdiction of the Federal High Court-Original & appellate (S.28 FHC Act);
 The Judge should be a legal practitioner of not less than 10 years-S. 250 (3) CFRN 1999 ;
 Appointment of a Judge is done by the President subject to the recommendation of the National
Judicial Council-S. 250 (2) CFRN 1999 ;
 Shall be constituted with at least one Judge-S.253 CFRN 99
8.3.4 National Industrial Court
 S.6 (5)(CC) & 254A CFRN1999 (as amended)- established the National Industrial Court
 S.254(C) CFRN (as amended ) –Jurisdiction (criminal and civil) but employment related;
 Duly constituted with at least a single judge-S.254E(1) CFRN;
 A judge must be a legal practitioner of not less than 10 years-S.254E(4) CFRN 1999 8.3.5
High Court of the FCT/ States
 Sec.255/270 CFRN1999 -Established the High Court of the FCT/State respectively;
 Jurisdiction-Ss. 257/ 272, CFRN 1999;
 To be constituted-at least one Judge;
 The Judge should be a legal practitioner of not less than 10 years-Sec 256(3), S.271(3) CFRN
1999;
8.3.6 Customary Court of Appeal of FCT/States
 Ss. 265/280 CFRN 1999 - Established the Customary Court of Appeal of the FCT/State
respectively Ss. 267/282 CFRN 1999 states the jurisdiction of the Customary Court of Appeal
of the FCT/State respectively
 (Constituted of at least 3 Justices) Section 268 CFRN 1999
 The Judge should be either a legal practitioner in Nigeria and has been so qualified for a period
of not less than ten years and, in the opinion of the National Judicial Council he has
considerable knowledge and experience in the practice of Customary law; or in the opinion of
the National Judicial Council, he has considerable knowledge of and experience in the practice
of Customary law.
Section 266, 281 of the 1999 Nigerian Constitution
8.3.7 Sharia Court of Appeal of FCT/States
 SS. 260/275 CFRN 1999 - Established the Sharia Court of Appeal of the FCT/State
respectively Ss. 262/277 CFRN 1999 (as amended 2011)- states the jurisdiction of the Sharia
Court of Appeal of the FCT/States;
 (Constituted with at least 3 Kadis-S. 263/278 CFRN 1999
 The Judge should be either a legal practitioner in Nigeria and has so qualified for a period of
not less than ten years and has obtained a recognised qualification in Islamic law from an
institution acceptable to the National Judicial Council; or
 b. he has attended and has obtained a recognised qualification in Islamic law from an institution
approved by the National Judicial Council and has held the qualification for a period of not
less than twelve years; and
i. he either has considerable experience in the practice of Islamic law, or
ii. he is a distinguished scholar of Islamic law.
8.3.8 Electoral Tribunals
 National Assembly/State House of Assembly Election Tribunal-S. 285 (1) CFRN 1999; S.133
(2) (b) El Act, 2010;
 Governorship. Election Tribunal-S. 285 (2) CFRN 1999;
 Area Council Election Tribunal-S. 135 EA;
 Area Council Election Appeal Tribunal –S.136 EA;
 Local Government Election Tribunal-State Law
8.3.9 The Code of Conduct Tribunal
 Par.15 (1) 5th Sched to the Constitution of the Federal Rep. of Nig., 1999establishmes the Code
of Conduct Tribunal
 The Code of Conduct Tribunal consists of a Chairman & 2 others);
 Par. 18 (supra); S.23 of the Code of Conduct Bureau & Tribunal Act;
 SARAKI V FRN (2016) LPELR-40013 (SC)
8.3.10 Court-Martial
 Ss. 240 CFRN 19999; Sec 291 (1) AFA (Military Court)-Establishes the Court Martial;
 There are two types of Court Martial:-General & Special- S. 129 AFA;
 General & Special Court Martials are the same (S. 129 (b)) except that:
a. The number of members is less in a Special Court Martial

b. A General Court Martial has a minimum of 5 members
c. A Special Court Martial could have less than 5 members but not less than 3 members
d. The persons who can convene a General Court Martial is different from persons who can
convene a Special Court Martial.
e. A Special Court Members cannot award more than 1 year prison term where it consists of
only 2 members.
f. A Special Court Martial cannot award death sentence where it consists of only 2 members
9.3.11 ECOWAS Court
 ECOWAS Treaty-1975-Established;
 Sitting, Abuja, Nigeria;
 Art. 9 of the Court’s Protocol states the jurisdiction of the ECOWAS Court. The ECOWAS
Court has the jurisdiction over the interpretation and application of Treaties, Conventions, and
Protocols. The ECOWAS Court also has jurisdiction over the violation of human rights that
occur in any member State.

 7 Justices-sitting with not less than 3 justices Article 3 of the ECOWAS Protocol; Article
14(2) Protocol
 (Can be constituted with the President & at least 2 members) Article 14(2) Protocol
9.4 Appointment and Tenure of Judicial Personnel
The tenure of Judicial Officers depends on the judicial personnel in issue:
 For the Supreme Court and Court of Appeal-May retire at the age of 65 years but shall cease
to hold office when he is 70 Years-S.291(1); CFRN 1999
 Federal High Court & other superior courts- May retire at the age of 60 years but shall cease
to hold office when he is 65 years-S.291(2); CFRN 1999
PART FOUR: LEGAL EDUCATION, LEGAL PROFESSION AND LEGAL AID
CHAPTER 9
ORGANISATION OF LEGAL EDUCATION IN NIGERIA
9.1 Nature of Legal Education in Nigeria
9.1.1 Brief History of Legal Education in Nigeria
The history of legal education in Nigeria started with the report of the Unsworth Committee. The
Unsworth Committee was set up by the Federal Government of Nigeria in 1959. It had 11 members
comprising of 5 Attorneys General and 6 legal practitioners of high integrity. The Committee’s
terms of reference included: to determine and to make recommendations for the: future of the legal
profession in Nigeria with respect to legal education and admission to practice; right of audience
in Nigerian Courts; and making of reciprocal arrangement with other countries.
The Committee, in its Report published in October 1959, made several recommendations. Among
these recommendations are, that:
(i) Nigeria should establish its own system of legal education

(ii) There shall be established, a faculty of law in University College, Ibadan and subsequently,
in other universities.
(iii) A Law School, to be known as Nigerian Law School should be established in Lagos to
provide vocational course in law
(iv) A Council of Legal Education should be established
(v) A University Law degree should be made a prerequisite for admission to legal practice in
Nigeria
(vi) There should be a fused legal profession for Nigeria
Majority of the recommendations of the Unsworth Committee were accepted and implemented by
the Government, via The Legal Education Act 1962 (now Legal Education (Consolidation Etc.)
Act and Legal Practitioners Act 1962. The Legal Education Act under S. 1(1) established the
Council of Legal Education to provide sustainable legal education for aspirant to the Bar. The
Nigerian Law School was established in 1962, but took off in 1963 with 8 students and for a 3
months course. The first faculty of law was established in University of Nigeria, Nsukka in 1961
and by the end of 1963. There were three more faculties of law in University of Lagos, Obafemi
Awolowo University, Ife and Ahmadu Bello University, Zaria.
9.1.2 Objectives of Legal Education in Nigeria
Legal education should be designed to ensure that graduates of law will have good general
knowledge of law, including a clear understanding of the place and importance of law in society.
All human activities – social, economic, political – take place within legal framework. Therefore,
the activities of government, companies and individuals are expected to be carried out within legal
framework. Legal education should act firstly, as a stimulus to stir the student into critical analysis
and examination of the prevailing social, economic and political systems of his community; and
secondly, as an intellectual exercise aimed at studying and assessing the operation, efficacy and
relevance of various rules of law in the society. The objectives of Legal Education are contained
in the approved Minimum Academic Standards in Law for all Nigerian Universities. They include
to produce lawyers:
(i) Who must be able to use law as a tool for the resolution of various social, economic and
political conflicts in the society.
(ii) Whose level of education would be properly equipped to serve as advisers, solicitors or
advocates to governments and their agencies, companies, business firms, associations,
individuals and families, etc.
(iii) The output or end result of whose education would meet the needs of such agencies and
institutions as international organisations, academic teaching and research institutions,
federal, state and local government bodies, various industrial, commercial and mercantile
associations and various social, family and domestic groups.
See generally Paragraph 1.2 of the Benchmark Minimum Academic Standards for Undergraduate
Programmes in Nigerian Universities, published by National Universities Commission in Abuja,
April, 2007.
9.1.3 Two-stage Legal Education System
The committee recommended that qualification for admission to legal practice in Nigeria should
be a degree in Law and the vocational course prescribed by the Council of Legal Education. Thus,
they recommended a two-stage legal education before admission to the bar, to wit:
(i) Academic pursuit at the faculties of Law in Universities and

(ii) Professional/Vocational training at the Nigerian Law School
Academic Training
Legal Education starts at the university level in Nigeria or abroad.
In Faculties of Law of the Nigerian Universities, the qualification for admission is stipulated by
Joint Admission and Matriculation Board (JAMB). The aspirant to the bar must have completed
secondary education and passed West African Senior Secondary School Certificate Examination
or its equivalent. Admission is granted by JAMB either under the direct entry into 2nd year level
or the Unified Tertiary Matriculation Examination (UMTE) into 1st year level. The law faculties
must be accredited by the National Universities Commission and the Council of Legal Education.
These Faculties of Law teach 23 core law courses made up of 12 compulsory and 11 optional
courses. The content of these Courses is approved by Council of Legal Education. The Curriculum
for the academic training is uniform and obligatory for all the law faculties and must be approved
by both the Council of Legal Education and the Nigerian Universities Commission. See the Legal
Education (Consolidation Etc.) Act, Cap L10 LFN, 2004 and National Universities Commission
Act, Cap N81 LFN, 2004.
For academic training in the Universities Abroad, the content of the courses of study at those
universities must have gained the approval of the Council of Legal Education. Council of Legal
Education has approved only foreign universities in Common Law Countries or foreign
universities that teach Common Law courses for such training.
Professional/Vocational Training
The Nigerian Law School is responsible for training of Law graduates from the various universities
(Nigerian or foreign). Currently, it has seven campuses at Enugu, Lagos, Kano, Yola, Yenagoa,
Port Harcourt and headquarters in Abuja. The Nigerian Law School is administered by the Council
of Legal Education and conducts the Bar Part I and Bar Part II Programmes. The Bar Part I is for
foreign law graduates. The Courses include – Constitutional Law, Criminal Law, Nigerian Legal
System, and Nigerian Land Law. Successful completion of Bar Part I qualifies the students for
admission into the Bar Part II programme. The Bar Part II programme is for all students aspiring
to become members of the legal profession. The Courses offered in the programme are
Professional Ethics & Skills, Civil litigation, Criminal litigation, Corporate Law Practice, and
Property Law Practice. Upon successful completion of the Bar Part II, the student would be
awarded a Qualifying Certificate.
To be qualified for admission into the Nigerian Law School, the student must be of good character
and have obtained a Law Degree. For Bar Part I programme, the student must have obtained a Law
Degree from a Foreign University, whose Course of studies has gained the approval of the Council
of Legal Education. On the other hand, for Bar Part II programme, if the student has a foreign Law
Degree, he/she must have passed the Bar Part I Examination, while if the student has a Nigerian
Law degree, the Faculty of Law from which he/she got the degree must be accredited by both
National Universities Commission and Council of Legal Education. Moreover, the content of the
course of study in such faculty of law must have been approved by the Council of Legal Education.
In the conduct of its duty of vocational training of aspirants to the legal profession, the Nigerian
Law School also perform certain ancillary duties, to wit: organizing and conducting Law dinners
for the students; organizing and sending the students for Externship Programme and carrying out
portfolio assessment to assess students’ level of participation and learning in the process; and
organising Moot Court trials.
In conclusion, students who are successful in the Bar Part II Examinations are awarded a
Qualifying Certificate. On presentation of the Qualifying Certificate to the Body of Benchers, the
Body of Benchers would call them to the Nigerian Bar and issue a Call to Bar Certificate to them.
Thereafter, the students would be enrolled at the Supreme Court on presentation of the Call to Bar
Certificate to the Chief Registrar of the Supreme Court. Upon this enrolment, they become legal
practitioners.
9.2 The Regulatory and Supervisory Bodies for Legal Education in Nigeria (Establishment
and Functions)
The three bodies that regulate and supervise Legal Education in Nigeria are the Council of Legal
Education, the Body of Benchers and the National Universities Commission.
9.2.1 Council of Legal Education
(a) Establishment
The Council of Legal Education is established by S. 1 (1) of the Legal Education (Consolidation
Etc) Act, formerly known as the Legal Education Act as Body corporate with common seal and
perpetual succession.
(b) Functions
Sections 1(2), 3, 4 and 5 of the Legal Education (Consolidation ETC.) Act stipulates some of the
functions of the Council of Legal Education. They are:
(i) Legal Education of persons seeking to become members of the Legal profession
(ii) Continuing legal education for legal practitioners. It substituted the Nigerian Institute For
Continuing Legal Education
(iii) Handle matters incidental to its functions
(iv) Issues qualifying certificates to aspirants to the Bar
(v) Accreditation of Faculties of Law in Nigerian Universities
(vi) Discipline of Students during their program at the Nigerian Law School
(a) Establishment
The Body of Benchers is established by Section 3 (1) of the Legal Practitioners Act. According
to Section 3(2) of LPA, it is a body corporate with perpetual succession and common seal.
(b) Functions
The functions of the Body of Benchers are generally contained in Sections 3(1), 4, and 10 of the
Legal Practitioners Act. According to these Sections, the duties of the Body of Benchers are:
(i) To liaise with the Council of Legal Education in training aspirants to the Bar
(ii) The formal Call to Bar of aspirants to the legal profession
(iii) Issuance of Call to Bar Certificate
(iv) Prescribe call fee
(v) Exercise disciplinary jurisdiction over students seeking to become legal practitioners
(vi) Make Regulations prescribing the following for aspirants to the Bar: the keeping of three
dinning terms; unblemished conduct; and sponsorship in writing by two members of the
Body of Benchers. See Regulation 5 Body of Benchers Regulation.
(vii) Undertake matters incidental to their duties
9.2.3 National Universities Commission
(a) Establishment
The National Universities Commission was established in 1962 by Section 1(1) National
Universities Commission Act, Cap. N81 LFN 2004. It is a body corporate with perpetual succession
and common seal as well as a juristic person with power to sue and be sued in its corporate name.
(b) Functions
The National Universities Commission Act, under Section 4 stated the functions of the National
Universities Commission, to wit:
(i) Advices the government on the creation of degree-awarding institutions

(ii) It spearheads the allocation and disbursement of government funds and external aids
(iii) Advising the government on ways to cater for the financial needs of Universities in Nigeria
(iv) General planning of University Education. The National Universities Commission in
undertaking this duty, approves draft statutes of the Universities, accredit institutions and
prescribes guidelines for staff student ratio and academic staff mix in the faculties
(v) Routine Monitoring of Universities
(vi) Grants approval for all academic units or programmes. Thus it approves creation of a new
faculty of law and other departments/programs of law in the universities.
(vii) Conducts accreditation of all University degrees and other academic awards. See Section
10 (1) Education (National Minimum Standards and Establishment of Institutions) Act,
Cap. E3, LFN 2004
(viii) Prescribe Minimum Academic Standards for all programmes taught in Nigerian
Universities and required by S. 10 (1) Education (National Minimum Standards and
Establishment of Institutions) Act, Cap. E3, LFN 2004.
For Faculties of Law, the National Universities Commission in April 2007, published
‘Benchmark Minimum Academic Standards for Law Undergraduate Programmes in the
Universities’ in Abuja
The Benchmark prescribed with respect to Law Degree –
(i) Basic admission requirements

(ii) Duration of programme
(iii)Graduation requirement
(iv) Degree classifications
(v) Evaluation system
(vi) Resources requirement – Personnel, physical facilities, library & information resources
(vii) General studies
(viii) Degree Programme - Course contents and descriptions for both law and non-law courses,
compulsory and elective courses, credit weights, period when to do the courses etc
It should be noted that in undertaking its duties in (iv) to (viii) above, the National Universities
Commission does it in conjunction with other bodies that assess and accredit the professional
contents of some of these programmes. In the case of law programme, it involves the Council of
Legal Education.
Finally, Legal Education in Nigeria is divided into academic and professional aspects. Academic
aspect is done in the law faculties in the universities while the professional or vocational aspect is
done at the Nigerian Law School. The universities are regulated and supervised by the National
Universities Commission. Nigerian Law School is under the supervision of the Council of Legal
Education. And the Body of Benchers liaises with the Council of Legal Education in the training
of Lawyers at the Nigerian Law School.
CHAPTER 11
ORGANISATION OF THE LEGAL PROFESSION IN NIGERIA
10.1 Right to Practice in Nigeria
This topic would be discussed under historical background and the categories of persons that have
the right to practice in Nigeria.
(a) Historical Background
The history of legal profession in Nigeria dates back to Colonial Era, that is, the latter half of 19th
Century. It derives its origin from the English legal system and legal profession. Before the British
Colonialization, natives had a system of traditional adjudication that promotes communal peace.
When the British came, they had to set up a workable system of law to cope with the incidence of
colonialism. Hence there arose the need for legal practitioners to aid colonial administration.
The Right to Practice in Nigeria in the Pre 1962 Scheme has two eras, to wit: the 1876 – 1914 and
the 1914 – 1961.
1876 – 1914 Era – within this period, the three categories of persons that have the right to practice
in Nigeria by virtue of Sections 71, 73 and 74 of the Supreme Court Ordinance (SCO) 1876
respectively are:
1. Qualified Lawyers – These are persons who are called to Bar in the UK or admitted as
solicitors in the UK. To be qualified, these persons must have passed the qualifying
examination at any of the 4 Inns of Court for Barristers or the Law Society for solicitor. They
are not required to have a degree and there is no need for physical attendance.
2. Those who served Articles in law firms - These are persons who have served 5 years
continuously in the office of a practicing barrister or solicitor within jurisdiction of the court;
and passed the examination on the principles and practice of law as set by the persons
appointed by the Chief Justice.
3. Local Attorneys – these are fit and proper Nigerians, who have the basic academic
qualifications (WASC), and passed the examination set by the Chief Justice. They were
enrolled for an initial 6 months and renewable. A total of 30 attorneys were enrolled and the
last attorney was enrolled in 1908.
1914 –1962 Era – Nigeria was formed in 1914. In 1943, a new Supreme Court Ordinance was
promulgated. It repealed Supreme Court Ordinance 1876. The Rules made under Supreme Court
Ordinance 1943 changed the requirements for right to practice in Nigeria. By Order 16 of Supreme
Court Rules 1943, right to practice was restricted to only formally trained lawyers, to wit:
Barristers and Solicitors. Thus, the persons qualified under the Order are: persons who qualified
as barristers or solicitors in the UK, who produced evidence of good character, and who fulfilled
other qualification relating to pupilage.
At that time, we had graduate Lawyers who had law degree. They were exempted from Bar Part I
examination at the Inns of Court or Solicitors’ Part I at the Law Society, paid enhanced salary, and
had shorter period of pupilage. We also had non Graduate Lawyers and had only WASC certificate.
Due to the anomalies created by this system of right to practice in Nigeria, the Unsworth
Committee was set up in 1959 by the Federal Government. Its terms of reference include: to make
recommendations for the future of legal profession in Nigeria, determine terms for right of
audience in Nigerian court and making of reciprocal arrangement with other countries. The
Committee made several recommendations, majority of which were implemented. It
recommended among other things that in Nigeria, the qualification for admission to legal practice
should be a degree in law or any university whose course for the degree is recognized by the
Council of Legal Education, and the vocational course prescribed by the Council (at the school
established by it). In implementing the recommendations by the Unsworth Committee, the Federal
Government enacted the Legal Education Act, 1962 and the Legal Practitioners Act, 1962. The
Legal Practitioners Act is the main Act regulating the legal profession. It made general provisions
relating to the practice of law, including the right to practice.
Deficiencies of English Trained Lawyers Practicing in Nigeria
1. In England, he/she is trained either as a Barrister or Solicitor, but he/she practices in Nigeria
as both.
2. Studied English textbooks and law reports.
3. Studied Unitary System of Government not Federation System.
4. Did not study Nigerian land law, and customary law which is essential part of Nigerian
legal system.
5. Some of the English trained lawyers never attended university and had no law degree,
unlike their Nigerian counterparts.
(b) Categories of Persons that can Practice in Nigeria
According to Section 2 of the Legal Practitioners Act, the three categories of persons that are
entitled to practice law in Nigeria are:
1. Persons entitled to practice generally

2. Persons entitled to practice for purpose of a particular office
3. Persons entitled to practice for the purpose of a particular proceedings
Persons Entitled to Practice Generally
These are persons whose names are enrolled at the Supreme Court. See Section 2 Legal
Practitioners Act. Section 7 of the Legal Practitioners Act made provisions for two ways of getting
enrolled. They are:
i) following Call to Bar, upon presentation of call to bar certificate to Chief Registrar of Supreme
Court; or
ii) under Regulation made by Attorney General of Federation.
Section 4(1) Legal Practitioners Act states the conditions for call to the Nigerian Bar. According
to the section, a person shall be entitled to be called to the bar if (a) he is a citizen of Nigeria (b)
he produces a qualifying certificate to the Benchers (c) he satisfies the Benchers that he is of good
character and (d) he pays call fees as may be prescribed from time to time by the Body of Benchers.
However, note that by virtue of Section 4(2) of Legal Practitioners Act, a non-Nigerian may be
called to the Nigerian Bar if they meet the other criteria.
Exemption from Production of Qualifying Certificate/ Attendance at Nigerian Law School
Qualifying certificate stating that a person is qualified to be called to the Bar is issued by the
Council of Legal Education. According to Section 5(1)(b) and 5(2)(b) of the Legal Education
(Consolidation Etc.) Act, qualifying certificate can be issued on the successful completion of the
course of practical training at the Nigerian Law School. Attendance at the Nigerian Law School is
mandatory. However, Council of Legal Education can exempt a person from attendance at the Law
School.
There are two kinds of exemptions, full exemption and partial exemption.
Full exemption – This entails exemption from Bar Part II programme. The criteria for such
exemption are if the person:
(i) Is a Nigerian citizen

(ii) Is qualified to be admitted to the Nigerian Law School
(iii) Has, as his qualifying subjects for admission to the Law School, all the core qualifying
subjects prescribed by Council of Legal Education
(iv) At the time he qualified to attend the law school or a reasonable time thereafter, he did not
attend for reasons beyond his control.
Partial Exemption – this means exemption from undertaking the Bar Part I programme. This
exemption is for Nigerian Universities Law Teachers. The criteria are:
• For graduates from Common Law Jurisdictions, they must have been teaching law for five
years or above in a faculty of law in a Nigerian University; and
• For graduates from a non-Common Law Country, they must have been teaching law for 10
years or above in a faculty of law in a Nigerian University.
Section 7(2) of the Legal Practitioners Act stated that the Attorney General may, after consultation
with the Bar Council and the Body of Benchers, by regulations provide for the enrollment of
persons to practice as Legal Practitioner without call to bar. This is a reciprocal facility made
available to persons who are qualified to practice law in a country that gives legal practitioners
from Nigeria the same special facility. The applicant is required to pass such examinations and to
pay such fees as may be specified by the regulation. The enrollment can be canceled where in the
opinion of the Attorney General, the reciprocal facility is altered or withdrawn. In line with this
power, the Attorney General made the Legal Practitioners (Special Facilities to Practice in Nigeria)
Regulation No. 35 of 1968. This Regulation stipulated the conditions for such enrolment.
Those Entitled to Practice by Virtue of Office
According Section 2(3) of Legal Practitioners Act, a person for the time being exercising the
function of any of these offices, that is: (a) the office of the Attorney General, Solicitor-General or
Director of Public Prosecution of the Federation or of the State; (b) such office in the public service
of the Federation or of a State, as the Attorney General of the Federation or State may by order
specify, shall be entitled to practice law for the purpose of that office. The Officers that Attorney
General of Federation has by order specified include Law officers in the Ministry of Justice, such
as Directors, Deputy Directors, Assistant Directors, Chief Legal Officers, Legal Officers and Pupil
Legal Officers. See Legal Practitioners (Entitlement to Practice as Barristers and
Solicitors)(Federal Officer) Order1992.
Those Entitled to Practice in respect of a Particular Court Proceedings
Section 2(2) Legal Practitioners Act stipulates that upon an application made to the Chief Justice
for any person entitled to practice as an advocate in any country where the legal system is similar
to that of Nigeria, the Chief Justice may, by warrant, grant the applicant permission to practice as
a barrister for the purposes of a particular proceedings and any appeal in connection to it. The legal
practitioner in this case can only practice as a barrister and for the case contained in the warrant
and no more. The applicant is required to pay such fee not exceeding N50 to the Registrar.
Moreover, the applicants in this case must be someone who can enter into Nigeria as of Right. See
the case of Awolowo v. Minister of Internal Affairs (1962) LLR 177; (1966) NSCC 209.
10.2 The Regulatory and Supervisory Bodies for the Legal Profession in Nigeria
(Establishment and Functions)
The bodies that would be discussed are: Nigerian Bar Association, General Council of the Bar,
Body of Benchers, Legal Practitioners Privileges Committee, Legal Practitioners Disciplinary
Committee, and Legal Practitioners Remuneration Committee.
10.2.1 Nigerian Bar Association
(a) Establishment
This body is not a creature of statute, but recognized by the Legal Practitioners Act. It is a voluntary
Association established in 1958 and registered as an incorporated trustee in 1983.
Legal Status of the Nigerian Bar Association – The NBA is a juridical and not a juristic person
that can sue or be sued in its own name. However, the trustees of the Association w e r e
registered under the Land (Perpetual Succession) Ordinance 1924, CAP 98, Laws of the
Federation of Nigeria and Lagos, 1958. This Ordinance was replaced by the Companies and Allied
Matters Act, and it is in Part C of CAMA. Section 612 of CAMA, Cap C20, LFN, 2004, validated
all previous registration under the Land (Perpetual Succession) Ordinance of 1924. Thus, its
previous registration as a Registered Trustee was validated. Therefore, the Association can only
sue or be sued in the name of the Registered Trustees of Nigerian Bar Association. See
Fawehinmi v NBA (No. 2) (1989) 2 NSCC 43.
(b) Functions
The Nigerian Bar Association is responsible for the maintenance of the honour and independence
of the Bar in its relation with the judiciary and the executive; maintenance of the highest standards
of professional conduct, etiquette and discipline; promotion of good relations among members of
the Association; promotion of legal education, law reforms and the establishment of Nigerian Law
Library; promotion of the improvement of the system of administration of justice; Establishment of an
Endowment Fund for the proper discharge of its functions; promotion of the rule of law in Nigeria etc. See
generally, Clause 2 of Nigerian Bar Association Constitution
10.2.2 General Council of the Bar
(a) Establishment
The Bar Council was established by Section 1(1) of Legal Practitioners Act.
(b) Functions
The Council is responsible for making and revising the Rules of Professional Conduct and Rules
of Accounts to be kept by legal practitioners. The Council has made the Legal Practitioners’
Accounts Rules of 1964 and the Rules of Professional Conduct (Now, of 2007). See Section 12(4)
of the Legal Practitioners Act.
(a) Establishment
Section 3 of the Legal Practitioners Act established the Body of Benchers as a body corporate with
perpetual succession and common seal. The Body of Benchers is a body of legal practitioners of
the highest distinction in the legal profession in Nigeria.
(b) Functions
The Body of Benchers is responsible for: Formal call to the Nigerian Bar of persons seeking to
become legal practitioners; Issuance of certificates of call to the bar; prescribing dining terms and
call fees; Appointing Caretaker Committee for the general management of the affairs of the
Nigerian Bar Association (if necessary); etc. See Sections 3, 4 and 10 of the Legal Practitioners
Act; Making regulation for the discipline of aspirants to the Bar and legal practitioners -
pursuant to which they prescribe for aspirants to the Bar conduct that maintain the traditional
values of the profession (fit and proper conduct), Keeping of 3 dinning terms and sponsorship
of each aspirant to the Bar by at least 2 of their members.
10.2.4 Legal Practitioners Privileges Committee
(a) Establishment
The Committee was established by Section 5(3) of the Legal Practitioners Act 1975.
(b) Functions
The Committee is responsible for: the conferment and withdrawal of the rank of Senior Advocate
of Nigeria. It may also in conjunction with the Body of Benchers make Rules relating as to the
obligations and privileges to be conferred on Senior Advocates of Nigeria. See Section 5 (1) and
(7) Legal Practitioners Act.
10.2.5 Legal Practitioners Disciplinary Committee
(a) Establishment
Section 11(1) of the Legal Practitioners Act established this committee. It is a committee of the
Body of Benchers.
(b) Functions
The Committee is responsible for consideration and determination of allegation of misconduct

against legal practitioners in connection with the practice of law. See Section 11(1) Legal
Practitioners Act.
10.2.6 Legal Practitioners Remuneration Committee
(a) Establishment
Section 15(1) of the Legal Practitioners Act (LPA) established this Committee.
(b) Functions
Under Section 15(3) of Legal Practitioners Act, the Committee is responsible for making Orders
for regulating generally the charges of legal practitioners.
CHAPTER 12
LEGAL AID AND ADVICE
11.1 Meaning and Importance of Legal Aid
Legal Aid is free or inexpensive legal services provided to those who cannot afford to pay the full
cost for such services. Legal aid is usually administered locally by a specially established
organization.74
The rationale for Legal Aid has been stated to include the following:
1. ‘Court proceedings are technical, complex and confusing. Therefore, it is important that a
lawyer who understands the procedures should always represent a layperson.
2. A teeming population of Nigerian cannot afford to pay for the services of a lawyer. It is
therefore needful to provide legal assistance for these persons.
3. Legal assistance is also important for purposes of facilitating proceedings in court. This is
because legal aid officers do not need an explanation of what is going on in court and
therefore this saves time.’75
Atsenuwa opines on the reason for legal aid that :
Lawyers are not provided in numerous proceedings in which the right to counsel exists in
accordance with the Constitution and/or state law. Too often prosecutors seek to obtain
waivers of counsel and guilty pleas from unrepresented accused persons, while judges
accepts and sometimes even encourage waivers of counsel.76
Also, guaranteed access to a fair trial and justice which is an aim of legal aid is a fulfilment of the
obligations of the government to the people as enshrined in Chapter II of the 1999 Constitution77
74
See Black’s Law Dictionary (Ninth Edition, Thomson Reuters 2004) 975.
75
See Akinlami N.L. ‘Legal Aid Reforms’ in Otteh J.C.(Ed.) Reforming for Justice, A Review of the Justice Sector Reforms
in Nigeria 1999-2007(Lagos: Access to Justice, 2007) 29 cited in Ani Comfort Chinyere: ‘Public Defence and the
advancement of Human Rights: Some Case Studies from Lagos Office of the Public Defender (OPD)’ in Bolaji
Owasanoye and Ayodele Atsenuwa (Ed.) Public Defence in a Developing Country: Looking Behind and Beyond.
(NIALS, 2010 )114.
76
See Ayodele Atsenuwa: ‘The Future of Public Defence: A Prognosis’ in Bolaji Owasanoye and Ayodele Atsenuwa
(Ed.), Public Defence in a Developing Country: Looking Behind and Beyond (NIALS 2010)191
77
Section 17(2)(a), (e), 23 CFRN 1999 (as amended 2011)
which is on fundamental objectives and directive principles of state policy and reduces the urge
for a resort to self-help by aggrieved persons.
Oputa JSC, in Josiah v State78, enthused thus:
What is hearing worth to an accused person who does not understand the language of the
court, who does not know the rules of procedure, and who cannot properly present his case?
The right to counsel is thus at the very root of, and is a necessary foundation for a fair
hearing. The ordinary layman, even the intelligent and educated layman is not skilled in
the science of law and he therefore needs the aid and advice of counsel.
Also, Justice Sutherland in the celebrated case of Powell v. Alabama79, highlighted the importance
of right to counsel in the following words:
The right to be heard would be, in many cases, of little avail if it did not comprehend the
right to be heard by counsel. Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with crime, he is incapable, generally
of determining for himself whether the indictment is good or bad. He is unfamiliar with the
rules of evidence. Left without the aid of counsel he may be put on trial without a proper
charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or
otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his
defence, even though he has a perfect one. He requires the guiding hand of counsel at every
step in the proceedings against him. Without it, though he be not guilty, he faces the danger
of conviction because he does not know how to establish his innocence.
The importance of the right to counsel of the accused’s choice as a means of guaranteeing his
access to justice and a free trial is graphically stated in Uzodinma v C.O.P80, HC Benue State thus:
…the desirability to avail the criminally accused of the opportunity to have his case put to
him by counsel needs to be emphasized because of the peculiar problem of the accusatory
system and adversary trial of the judicial process we have adopted in the country. The State
uses all its forces of investigation and expertise in prosecution to prove the guilt of the
accused. Ordinarily the accused who is a layman…has to rely on his employment of an
expert, an advocate, to be his alter ego to counter balance the forces of state prosecution in
court. An adversary system assumes that the state and the accused are of equal
strength…An accused person, even if he is literate, stands to benefit from the assistance of
counsel at criminal trial…The knowledge of the procedural tools, the substantive materials
and the effective use of both in court require more than ordinary intelligence, cleverness or
literacy of the accused. These facts make lawyers essential cogs in that machinery which
78
(1988) 1 NWLR (pt.1) 125 at 140
79
(1932) 287 U.S. at 68-69
80
(1982) 3 NCLR 32
administers criminal justice because they play the initial role in helping the court in
ascertaining the truth or near truth of a matter before it.’
In the same vein, In Ezea v The Queen81, the Supreme Court said that the accused person ‘shall
not have counsel vested on him but shall be at liberty to choose his own counsel’. In Gokpa v
IGP82, the trial judge gave the accused persons few hours within which to engage the services of
lawyer and this was inadequate, the Court of Appeal quashed his subsequent conviction noting
inter-alia the importance of his representation by counsel.
In Awolowo v Usman Sarki & Anor83, The court interpreted the phrase ‘counsel of his own choice’
as meaning anyone who had a right to enter Nigeria as of right.’
In Nigeria, legal aid started in the usual way it does by private legal practitioners rendering
legal aid and advice to indigent persons in civil and criminal matters, on ground of
compassion pro bono publico, that is, for public good, as a contribution to the
administration of justice in Nigeria. Later on, the Criminal Procedure Act and the Criminal
Procedure Code made provisions for counsel to be assigned free of charge to indigent
persons standing trial for a serious or capital offence. Later, the Legal Aid Association
chaired by Chief Chimezie Ikeazor SAN, was formed by him and several others to provide
free legal services to indigent persons. This was the position until calls for a broad public
legal aid scheme reached its peak under the Muritala/Obasanjo military regime, which
enacted the Legal Aid Decree No.56 of 1976 and established the Legal Aid Council to run
a modern legal aid scheme in Nigeria for the benefit of deserving members of the public.
The Legal Aid Decree is now known as the Legal Aid Act.84
11.2 Legal Framework for Provision of Legal Aid in Nigeria
The Nigerian Constitution
The CFRN 1999 guarantees the right of an accused person to fair hearing. Precisely, Section
36(6)(b)(c) provides that every person who is charged with a criminal offence shall be entitled be
given adequate time and facilities for the preparation of his defence; and defend himself in person
or by a legal practitioner of his own choice.
Section 46(4)(b) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 provides
that: ‘The National Assembly shall make provisions (i) for rendering of financial assistance to any
81
(1963) 1 All NLR 245
82
(1962) 1 All NLR 423
83
(1962) LLR 177.
84
See Ese Malemi, The Nigerian Legal System (Princeton & Associates Publishing Co. Ltd, 2021) 894.
indigent citizen of Nigeria where his right under this Chapter has been infringed or with a view to
enabling him to engage the services of a legal practitioner to prosecute his claim, and(ii) for
ensuring that allegations of infringement of such rights are substantial and the requirement or need
for financial or legal aid is real.’
The Legal Aid Act, 2011
This Act repeals the Legal Aid Act Cap. L9, Laws of the Federation of Nigeria, 2004, enacts the
Legal Aid Act, 2011 in line with international standards, provides for the establishment of legal
aid and access to justice fund into which financial assistance would be made available to the
Council on behalf of the indigent citizens to prosecute their claims in accordance with the
Constitution and further empowers the existing Legal Aid Council to be responsible for the
operation of a scheme for the grant of legal aid and access to justice in certain matters or
proceedings to persons with inadequate resources in accordance with the provision of the Act. See
the Explanatory Memorandum to the Legal Aid Act, 2011.
The Criminal Procedure Act
Section 352 of the Act provides that – ‘Where a person is accused of a capital offence…if the
accused is not defended by a legal practitioner, the court shall, if practicable, assign a legal
practitioner for his defence.’
The Criminal Procedure Code
Section 186 of this law provides that – ‘Where a person is accused of an offence punishable with
death, if the accused is not defended by a legal practitioner, the court shall assign a legal
practitioner for his defence.
The Supreme Court Act
This Act by section 28 of its provisions states that – ‘The Supreme Court may at any time assign
counsel to an appellant in any appeal or proceedings preliminary or incidental to an appeal in
which, in the opinion of the court, it appears desirable in the interest of justice that the appellant
should have legal aid, and that he has not sufficient means to enable him to obtain that aid.’ See
also Order 2 Rule 14 of the Supreme Court Rules 2014 (as amended) on Fees in proceedings by
poor persons.
The Court of Appeal Act
Section 25 of the Court of Appeal Act, Cap. C36 LFN, 2004 provides that – ‘The Court of Appeal
may, at any time assign counsel to an appellant in any appeal or proceedings preliminary or
incidental to an appeal in which, in the opinion of the Court of Appeal, it appears desirable in the
interests of justice that the appellant should have legal assistance, and that he has not sufficient
means to enable him to obtain that assistance.’ See generally Order 13 of the Court of Appeal
Rules, 2016 on ‘Proceedings by persons without means’.
High Court Civil Procedure Rules
See for example Order 54 of the High Court of the Federal Capital Territory, Abuja (Civil
Procedure) Rules 2018 headed ‘Proceedings in Forma Pauperis’. The Order is applicable to
proceedings for which there is no statutory provision for Legal Aid. See O54R1. The Court may
allow a person to sue or defend in forma pauperis if satisfied that his means do not permit him to
employ a legal practitioner in the prosecution of his case and that he has reasonable grounds for
suing or defending as the case may be. See O54R2. A person seeking relief under the Order shall
write an application to the Chief Judge accompanied by an affidavit, signed and sworn to by the
applicant himself, stating that by reason of poverty he is unable to afford the services of a legal
practitioner. See O54R3(1). If in the opinion of the Chief Judge, the application has merit, the
Chief Judge shall appoint a legal practitioner to act for the applicant. See O54R3(2). Where a legal
practitioner is so appointed the applicant shall not dispense with his service except with the leave
of the Chief Judge. See O54R3(4).
Court fees payable by a person allowed to sue or defend in forma pauperis may be remitted either
in whole or in part as the court may deem fit and such person shall not, unless the court otherwise
orders, be liable to pay or receive any costs. See O54R4. The legal practitioner shall not, except
by leave of the Chief Judge, take or agree to take any payment whatsoever from the applicant or
any other person connected with the applicant or the action taken or defended. See 54R5(1). If the
applicant pays or agrees to pay any money to any person whatsoever in connection with his
application or the action taken or defended, the order appointing the legal practitioner shall be
revoked. See O54R5(2). If the legal practitioner assigned to the applicant discovers that the
applicant is of means beyond those stated in the affidavit, if any, he shall at once report the matter
in writing to the registrar. See O54R5(3). The Chief Judge may at any time revoke the order
granting the application and the applicant shall not be entitled to the benefit of this order in any
proceedings to which the application relates unless otherwise ordered. See O54R6(1). The
applicant or the legal practitioner assigned to him shall not discontinue, settle or compromise the
action without the leave of the court. See O54R6(2).
The court may order payment to be made to the legal practitioner out of any money recovered by
the applicant or may charge in favour of the legal practitioner upon any property recovered by the
applicant, such sum as in all circumstances may deem fit. See O54R7. Every order, notice or
application on behalf of the applicant, except an application for the discharge of his legal
practitioner, shall be signed by his legal practitioner, who shall take care that no application or
notice is made or given without reasonable cause. See O54R8. No person shall be permitted to
appeal in forma pauperis except by leave of the trial or the appellate court; but if so permitted the
provisions of this order shall apply mutatis mutandis to all proceedings on the appeal.
Administration of Criminal Justice Act/Law
Section 395 of the Act provides that where a defendant is accused of a capital offence or offence
punishable by life imprisonment, the State shall be represented by a law officer, or a legal
practitioner, and where the defendant is not defended by a legal practitioner, the court shall assign
a legal practitioner for his defence. See also Kaduna State ACJL S.402; Edo State ACJL S.395;
Kogi State ACJL S.393; Oyo State ACJL S.396 and Rivers State ACJL S.402. Compare ACJL
Lagos State S.259 and Anambra State ACJL S.233.
State Laws Establishing Legal Aid Agencies
Some States have established public agencies or bodies to render legal assistance at State level to
indigent persons. An example is the Lagos State Directorate for Citizens Rights, Office of the
Public Defender and the Citizens Mediation Centre, established to provide various legal assistance,
arbitration and to conciliate and mediate between disputants or parties who apply to the agencies
for legal services.
Nigerian Bar Association (NBA) Constitution
Article 3(d) of the Constitution of the Association provides as one of the aims and objectives of
the Association, the establishment, maintenance and operation of a system of prompt and efficient
legal aid and assistance for those in need but who are unable to pay for same.
The Criminal Justice (Release from Custody)(Special Provisions) Act, Cap C10, LFN 2004
This Act as a form of legal aid authorizes periodic goal delivery visits and releases of prisoners in
appropriate cases by the Chief Judge of State High Courts.
11.3 Institutions Concerned with Provision of Legal Aid in Nigeria
11.3.1 Legal Aid Council of Nigeria
Section 1 of the Legal Aid Act 2011 establishes the Legal Aid Council which shall be a body
corporate with perpetual succession and a common seal and may sue and be sued in its corporate
name. The Council shall have responsibility for the provision (in accordance with the enabling
Act) of legal aid, advice, access to justice in respect of persons entitled thereto. The Council
comprises (a) the Governing Board made up of the Chairman and the members; (b) the Director-
General of the Council; and (c) such supporting legal and other staff engaged for the purposes of
the efficient performance of the duties and obligations of the Council under or pursuant to the Act.
Section 2 of the Act provides for the qualification and membership of the Governing Board. The
Governing Board shall comprise of a Chairman who shall be a retired judge or a legal practitioner
of repute of not less than 15 years standing; a representative of the Attorney-General;
representative of the Federal Ministry of Finance; a representative of the National Youth Service
Corps Directorate; representative of the Inspector-General of Police; representative of the
Comptroller-General of Prisons; Four representatives of the Nigeria Bar Association, one of whom
shall be General Secretary of the Association; representative of the Nigerian Labour Congress;
representative of Women Group providing free legal aid services; two representatives of States
sponsoring legal aid services; representative of civil society based organization providing legal
aid; representative of the Nigerian Union of Journalists; and the Director-General.
The functions of the Governing Board shall include the establishment of broad policies and
strategic plans of the Council in accordance with the provisions of the Act. See Section 3 of the
Act.
Section 8 provides for the scope of legal aid and access to justice. The grant of legal aid, advice
and access to justice shall be provided by the Council in 3 broad areas, namely, Criminal Defence
Service, Advice and Assistance in Civil matters including legal representation in court and
Community Legal Services subject to merit and indigence tests for the parties. See S.8(1)
The Council, shall establish, maintain and develop a service known as the Criminal Defence
Service for the purpose of assisting indigent persons involved in criminal investigation or
proceedings specified in the Second Schedule to this Act, access to such advice, assistance and
representation as the interest of justice requires. See 8(2).
Proceedings in respect of which Legal Aid may be Given
A. Proceedings in a court or tribunal at first instance or on appeal wholly or partly in respect of

crimes of the following descriptions, or as near to those descriptions as may be , respectively in
any Criminal Code or Penal Code-
CRIMINAL CODE PENAL CODE
1. Murder of any degree Culpable homicide punishable with death

2. Manslaughter Culpable homicide not punishable with death
3. Maliciously or willfully Wounding or inflicting grievous bodily harm.
causing grievous hurt.
4. Assault occasioning actual Criminal force occasioning actual bodily harm.

bodily harm.
5. Common assault.
6. Affray.
7. Stealing.
8. Rape.
9. Armed robbery. (See the Second Schedule to the Act.)
It would appear that the number of criminal matters covered by the Legal Act is quite low in
relation to the over 400 offences under the Criminal Code. See sections 37-521, Criminal Code
Act, Cap.38 LFN 2004.
The Legal Aid Council is also mandated to establish and maintain a service to be known as the
Civil Litigation Service for the purpose of assisting indigent persons to access such advice,
assistance, and representation in court where the interest of justice demands, to secure, defend,
enforce, protect or otherwise exercise any right, obligation, duty, privilege, interest or service to
which that person is ordinarily entitled under the Nigerian Legal System. See S.8(3)
Legal Aid shall also be granted in respect of any breach or denial of any such right, obligation,
duty, privilege or service and the Council shall be responsible for representation before any court
or tribunal for such civil matters. S.8(4)
Legal Aid consists on terms provided by the Act of: (a) the assistance of a legal practitioner
including all such assistance as is usually given to by a private legal practitioner in the steps
preliminary or incidental to any proceeding; (b) representation by a legal practitioner including all
such assistance as is usually given by a private legal practitioner before any court; and (c) such
additional aid (including advice) as may be prescribed.
Subsection 6 of the Section provides that: ‘Where regulations made provide for legal aid, provision
shall be made therein to the effect that persons shall not be given legal aid in connection with any
such proceeding unless he shows to the satisfaction of the Director-General or other person
authorized by the Council that he has reasonable grounds for taking, defending or being a party
thereto, and may also be refused legal aid if it appears unreasonable that he should receive it in the
particular circumstances of the case.
S.8(7) of the Act mandates the Council to establish, maintain and develop a service known as
Community Legal Service for the purpose of promoting individual services and in particular, for
ensuring that individuals have access to services that effectively meet their needs. Community
Legal Services for the purpose of the section means: the provision of general information about
the law and legal systems and the availability of legal services; the provision of assistance in
preventing or settling or otherwise resolving disputes about legal rights and duties; the provision
of assistance in financial support and rendering; and the provision of assistance with regards to
claims against public authorities, private organizations and individuals. Provided that the Director-
General shall reserve the right to set the limit of such assistance.
Section 8(8) of the Act provides that every person authorized by the Council to exercise the
functions relating to Community Legal Service shall do so in such a manner as to - (a) promote
improvement in the quality of services provided for the benefit of those who need them; (b) ensure
that the services provided in relation to any matter are appropriate having regard to its nature and
importance; and achieve a swift and fair resolution of disputes in order to avoid the necessity of a
protracted court proceeding.
Financial aspects of Legal Aid
Section 9 of the Act establishes the Legal Aid General Fund for the day-to-day administration of
the Council into which shall be paid – (a) such sums as shall be appropriated annually by the
National Assembly pursuant to section 46 of the Constitution of the Federal Republic of Nigeria;
and (b) such sums as shall be appropriated annually or otherwise provided from time to time by
the Government of each State of the Federation and the Federal Capital Territory.
Section 10 makes provisions on persons entitled to Legal Aid. It provides that legal aid shall only
be granted to a person whose income does not exceed the national minimum wage.
Notwithstanding the provision of the foregoing, the Board may, in exceptional circumstances grant
legal aid service to a person whose earning exceeds the national minimum wage. In the same vein,
the Governing Board may approve the giving of legal aid on a contributory basis to a person whose
income exceeds ten times of the national minimum wage. Provided that the Council shall recover
the expenses incurred in giving legal aid to such a person by the retention of both an amount equal
to 10 percent of the damages awarded and the costs awarded to him. Where such a person has been
granted Legal Aid on a contributory basis he shall be entitled to a refund of his contribution from
such costs. No contribution made under subsection 2 of the section shall exceed the appropriate
sum calculated in the manner prescribed for that purpose. The Council shall not be liable in any
way to pay costs howsoever awarded against a person granted legal aid. See Section 10(5). The
rules of any court relating to payment of fees shall not apply to a person granted legal aid. See S.10
(6).
Section 11(1) of the Act provides that: ‘In ascertaining the means of any person for the purposes
of this Act, that person’s income and his personal and real property shall be taken into account.
Subsection 2 of the section provides that in assessing a person’s means such of his contribution as
may be prescribed shall be deducted from the resources, which would otherwise be his means.’
The Council may accept gifts of land, money or other property upon such terms and conditions, if
any as may be specified by the person or organization making the gift. However, the Council shall
not accept any gift if the condition attached by the person or organization making the gift to the
acceptance thereof are inconsistent with the functions of the Council. See Section 12(1) & (2) of
the Act.
Panels of Legal Practitioners willing to act for persons receiving legal aid (whether gratuitously or
otherwise) is to be prepared and maintained by staff of the Council and there may be separate
panels for different purposes and, for different courts and different districts. A legal practitioner
shall be entitled to have his name on the appropriate panel or panels unless the designated staff of
the Council thinks that there is reason (arising out of his conduct when acting or selected to act for
persons receiving legal aid or his professional conduct generally or, in the case of a member of the
firm) for excluding him. Where a legal practitioner is aggrieved by any decision excluding him
(whether permanently or temporarily) from any panel he may refer the matter to the Director-
General and if he is not satisfied with the decision of the Director-General he may appeal to the
Governing Board. See Section 14(1), (2) & (3) of the Act.
Section 15 of the Act prohibits the demand for payment by a legal practitioner on the panel of legal
practitioners of the Council from a person receiving legal aid.
Notwithstanding the provisions of any other enactment including rules of court, legal practitioners
for the time being serving in the National Youth Service Corps shall, if the Council so directs, act
for a person receiving legal aid, in which case no professional fees shall be made by the Council
except stipend and travelling allowance. See Section 16 of the Act.
The Council shall maintain a register of non-governmental organizations and law clinics that are
engaged in the provision of legal aid or assistance to persons who are entitled to legal aid under
this Act. The Council may partner with or otherwise engage the services of such organizations in
a manner consistent with the mandate of the Council. Likewise, the Council may grant licenses to
persons who have undergone a prescribed course in paralegal services to render such services in
appropriate situations. Section 17(1)-(3) of the Act.
A legal practitioner who institutes or conducts pro bono cases on behalf of persons entitled to legal
aid under this Act shall register such cases with the Council, which shall keep record of and
monitor the progress of such matters. A legal practitioner who applies to be appointed to the rank
of Senior Advocate of Nigeria shall be required to show evidence of diligent conduct of not less
than three pro bono cases in the ten years preceding his application and it is a professional
misconduct for any legal practitioner to abandon or otherwise neglect such cases. See Section
18(1)-(3) of the Act, Guideline 8(5)(b) of the 2022 Guidelines for the Conferment of the Rank of
Senior Advocate of Nigeria and for Related Matters.
Section 19 of the Act deals with Prison monitoring and review of cases of awaiting trial inmates.
The section provides that the Council shall, from time to time, conduct inspection of prisons, police
cells and other places where suspected persons are held in order to assess the circumstances under
which such persons are detained. It shall be the duty of all police officers and courts to inform
suspected person of his entitlement to the services of a legal practitioner from the moment of arrest
and if such suspect cannot afford the services of a legal practitioner to notify the Council to
represent him if he so desires. See Section 19(1) and (2) of the Act.
The Council and the lawyers designated by it shall be entitled to have access to and interview
suspects detained in prisons, police stations, or any other places of detention in Nigeria and such
designated lawyers shall be entitled to be present during the interrogation of the suspects in
accordance with the rights guaranteed to suspects under the Constitution. S.19 (3). The Council
shall regularly liaise with the Judiciary, Attorney-General of the Federation or of any State, the
Department of Public Prosecution, the Inspector-General of Police, the Commissioners of Police,
Prison Authority or other agencies as may be appropriate, in order to avoid unnecessary delay in
the prosecution of cases. S.19 (4). The Council may file an application in any appropriate court for
the review of the case of any person who has been held in any place of custody without trial for a
period exceeding the maximum provided by the Constitution. S.19 (5).
All information collected publicly or received by the Council in the discharge of its functions and
exercise of its powers under this Act shall be publicly accessible unless the disclosure of such
information would be–(a) harmful to the safety and security of any person; (b) cause avoidable
damage to the best interest of a known child or young person; (c) irreparably damaging to the best
interest of the known child or young person. The foregoing shall not prevent the disclosure of
information for any purpose with the consent of the person in connection with whose case it was
furnished where he did not furnish it himself, with that of the person or body of persons who
furnished it. See S.20 (1) and (2).
Any person who otherwise than in compliance with the provision of this Act or of regulations
made thereunder discloses information obtained by him commits an offence and shall be liable on
summary conviction to a fine of N50,000.00 or imprisonment for a term not exceeding six months
or to both such fine and imprisonment. S.20 (3).
If a person seeking or receiving legal aid or advice in furnishing any information required under
or pursuant to this Act, knowingly or recklessly makes any statement which is false in a material
particular, he commits an offence and shall be liable on summary conviction to a fine of N
50,000.00 or imprisonment for a term not exceeding six months or to both such fine and
imprisonment. See Section 21 of the Act
[A] number of very serious criticisms have been laid against the Legal Aid Act, the Council
and its activities. These criticisms include the fact that political offences like sedition,
treason and treasonable felonies are excluded from the ambit of proceedings covered by
the Act…In addition to the foregoing criticisms, there is also the non-independent status of
the Council. The Council, as stated above, is a parastatal in the Federal Ministry of Justice
and is therefore subject to the directions of an agency of the executive arm of the
government which it is supposed to serve as a watchdog over. Awareness of the public
about the Council and its activities is almost nil. Little or nothing is known of the Council
by ordinary citizens on the street. The geographical spread of Council in States of the
Federation is also insufficient. Considering the number of people likely to need the services
of the Council in a State, an office to each State of the Federation is a grossly insufficient
presence.85
85
See Akinola Akintayo, ‘Access to Justice in Nigeria: An Historical Perspective’ in Bolaji Owasanoye and Ayodele
Atsenuwa (Ed.) Public Defence in a Developing Country: Looking Behind and Beyond (NIALS 2010) 28.
11.3.2 Office of the Public Defender of Ministries of Justice
‘Public defender is a lawyer or staff of lawyers, usually publicly appointed and paid, whose duty
is to represent indigent criminal defendants.’86
The role of a Public defender within the context of our discourse is to provide legal services in
form of legal aid to indigent persons seeking same as a means of guaranteeing access to justice
and a fair trial including the provision of legal advice and consultation on pre-trial issues.
One of the reasons for the establishment of the Office of the Public Defender by some states in
Nigeria is the restriction on persons that may access legal aid by the provisions of section 46(4) of
the Constitution and that of the Legal Aid Act. Legal aid services by the provision of the
Constitution and the Act is mainly geared towards indigent Nigerian citizens particularly in respect
of the enforcement of fundamental human rights. However, the challenges of access to justice go
beyond financial constraints and include issues like the actualization of rights of women and
children. Also, an ideal legal aid establishment should cater for non-citizens residing in the
country.87
Lagos State is an example of a state in the country that has established the Office of the Public
Defender (others include Ogun State and Jigawa albeit under different names) pursuant to which
it enacted the Office of the Public Defender Law Cap.54, 2008. Unlike in some jurisdictions, the
Lagos State OPD represents the poor in both criminal and civil cases. It offers free legal services
in criminal and civil cases to the indigent and other vulnerable groups like women and children
and also explores the avenue of Alternative Dispute Resolution (ADR) in pursuit of same.
Cases are initiated are initiated at the Lagos OPD through:
1. Petitions which are written directly by an aggrieved indigent party or on his behalf.
2. Referrals from courts, prisons and NGOs for legal assistance.
3. Pro-active response of the Office to public interest matters as they arise.
The Office Litigation Clerk who receives referrals or petitions sends each newly received
referral or petition to the Director or other designated senior officer who, in turn, assigns same
to a Counsel.
86
See Black’s Law Dictionary (Ninth Edition, Thomson Reuters 2004) 1349.
87
See N.S. Okogbule, Access to Justice and Human Rights Protection in Nigeria: Problems and Prospects,( 3 SUR-
International Journal on Human Rights 2005)108 cited in Ayoade Morakinyo Adedayo, ‘The Evolution of Public Legal
Defence in Global Perspective’ in Bolaji Owosanoye and Ayodele Atesnuwa (Ed.) Public Defence in a Developing
Country: Looking Behind and Beyond (Lagos: NIALS 2010) 7.
Except for matters already in court, upon receipt of a complaint, the next line of action is to
write a letter of invitation to the other party for a meeting usually held in one of the OPD
offices.’
Usually at this stage, the aim is to resolve issues in contention between the parties using the
Alternative Dispute Resolution (ADR) methods such as mediation, negotiation, conciliation
and/or reconciliation and avoid resort to the law courts. At this stage, the OPD counsel does
not play the role of an adversarial counsel but that of an ADR practitioner. However, where
parties fail to resolve the issues through ADR, the counsel re-assesses the complaints of the
petitioner and if there appears to be a good case, the petitioner is accompanied to the Police to
lodge a complaint of a crime where the issue turns on a criminal conduct. In the ensuing
criminal trial, OPD holds a watching brief in the court. Where it is a civil matter, OPD files a
civil suit on behalf of the petitioner in court.88
Equally worthy of note on the procedure for accessing legal aid is section 74 of the ACJL Lagos
State, 2007 which requires that where the police duplicates a case file for forwarding to the Office
of the Attorney-General and upon review, there is an indication of a prima facie case, in respect of
an indictable offence, the Attorney-General is to inform the Magistrate in writing by way of legal
advice. A form, indicating a desire to be represented by counsel of his choice or by OPD, Legal
Aid Council, or any other organization providing legal aid, is to be attached to a copy of the legal
advice and served upon the person in respect of whom legal advice is proffered. Where the suspect
indicates that he wishes to be represented by any of the legal aid providers enumerated above, the
Chief Registrar shall forward the form to such Office.
Eligibility for Legal Aid at OPD
In line with its enabling law, OPD provides/offers free legal services and advice to the indigent or
other vulnerable groups only. The underlying reasons for limiting the services of OPD to these
groups include the unrealistic costs (in terms of human and financial resources) that would flow
from attempting to provide free legal service and advice to all. Aside from making the overall cost
of providing legal aid outrageous, to attempt to so do will likely provoke the angst of private legal
practitioners who would lose clientele and so income. Thus, one of the first administrative tasks
that OPD gave itself was the development of assessment tools to facilitate screening of applicants
for eligibility for the services of the Office; the goal being to ensure that clients served are truly
indigent and or otherwise vulnerable and oppressed. The assessment tool is primarily a
Questionnaire which applicants fill to provide OPD with information considered critical for
assessing eligibility or otherwise such as income, nature of job, property and other assets, contexts
that demonstrate vulnerability, etc. The policy and practice of testing for eligibility remains today
88
See Hon. Justice Bisi Akinlade and Omotola Rotimi, ‘The Lagos State Office of the Public Defender: Ten Years of
Existence’ in Bolaji Owasanoye and Ayodele Atsenuwa (Ed.) Public Defence in a Developing Country: Looking Behind
and Beyond (NIALS 2010) 33 and 34.
and those who are screened out are usually advised to seek the services of a private legal
practitioner.89
The OPD Legal Regime
The legal regime for the establishment of an Office of Public Defender in Lagos State commenced
in 2003 with the passage of the Office of Public Defender Law No.253 of 2003. That law was
repealed and replaced with the OPD Law of 2008.
The OPD is established in section 1 of the law as a body corporate with perpetual succession and
the power to sue and be sued, hold and dispose of property and a common seal.
The functions of OPD as listed in section 2 are: (a) To provide legal aid services including
representation and advice; (b) To receive complaints about need for legal aid directly from
individuals or by referrals from government agencies, public or private institutions; (c) To
investigate complaints or referrals; (d) To prepare legal documentation and/or negotiate
settlements. (e)To use dispute resolution mechanisms to resolve disputes before it; (f) Conduct
public education and public enlightenment activities; (g) Collaborate with other government and
non-government agencies in the discharge of its functions.
The functions of the Governing Council of OPD as contained in section 4 of the OPD Law are to-
(a) Be responsible for matters relating to legal aid provided by OPD in Lagos State and shall ensure
that the OPD performs the duties imposed upon it by this Law,
(b)
(c) Formulate and develop strategies to implement the OPD Law and other related policies of the
Lagos State Government towards giving legal assistance to the poor;
(d) Promote measures to improve legal aid and assistance to the poor and those covered by this
Law; and
(e) Monitor and evaluate the quality and timeliness of services provided by OPD.
The services offered by the OPD covers the pre-trial, trial and post-trial stages in line with section
35(2) of the Constitution which provides as follows: ‘Any person who is arrested or detained shall
have the right to remain silent or avoid answering any question until after consultation with a legal
practitioner or any other person of his own choice.’ The foregoing Constitutional provision is
similar with section 3(2)(a) of the Administration of Criminal Justice Law, 2007, (ACJL) which
89
See Hon. Justice Bisi Akinlade and Omotola Rotimi, ‘The Lagos State Office of the Public Defender: Ten Years of
Existence’ in Bolaji Owasanoye and Ayodele Atsenuwa (Ed.) Public Defence in a Developing Country: Looking Behind
and Beyond (NIALS 2010) 34.
provides that the person making an arrest or the police officer in charge of the police station or any
law enforcement agency is to inform the person arrested of his rights, including the right to remain
silent or avoid answering any question until after consultation with a legal practitioner or any other
person of his choice.
Innovations by the Office of Public Defender
1. In Lagos State for example, offices of the OPD are situate in many, varied and strategic
locations which ensures accessibility to its target clients.
2. The scope of its services in criminal cases is wider and not delimited as in the case of the Legal
Aid Act.
3. Its target client is not limited to Nigerian citizens provided such persons are residents of Lagos
State.
4. It explores the mechanism of ADR in settling disputes and does not make litigation the option
of first resort.
Challenges of the OPD
1. Negative public opinion/acceptance based on an incomprehension as to the reason why public

funds should be utilized in financing the defense of persons accused of grave crimes like
kidnapping, armed robbery and other capital offences against the state.
2. Inadequate funds needed in form of grants or subventions by government to facilitate the
functions of the OPD.
3. The fear of being put out of business which may be nursed by some lawyers in private legal
practice.
4. Inadequate qualified, skilled and experienced trained manpower needed to ensure an optimum
functioning of the OPD.
5. The need to integrate state social/welfare service agencies in the running of the OPD to over-
see the rehabilitation and re-connection of accused persons whose release from prison had been
facilitated by the OPD.
6. The need for regular updating or reform of substantive and procedural laws relevant to the
proper functioning of the OPD.
7. Fear of OPD counsel compromising cases against the State government bearing in mind that
the staff of the OPD are on the pay roll of the State Government.
8. The speedy disposal of cases by the court or lack of it as the case may be also helps or militates
against the optimum functioning of the OPD.
11.3.3 National Human Rights Commission
The National Human Rights Commission of Nigeria is established by the National Human Rights
Commission Act of 1995, as amended in 2010 for the promotion and protection of all human rights.
In particular, the Commission has the mandate to deal with all matters relating to the protection of
human rights in Nigeria as guaranteed by the Nigerian Constitution, the African Charter on Human
and Peoples Rights, the United Nations Charter, the Universal Declaration on Human Rights and
other international human rights treaties to which Nigeria is a party. By the 2010 amendment, the
Commission now has quasi-judicial powers to summon persons, evidence and to award
compensation and enforce its decisions. It also has power to visit any place of detention with a
view to ensuring that detainees’ rights are not violated. See Part II Section 5 of the Act.
Section 6 of the Act empowers the Commission to conduct its investigations and inquiries in such
manner as it considers appropriate; institute any civil action on any matter it deems fit in relation
to the exercise of its functions under the Act; appoint any person, whether or not such a person is
in public service, to act as an interpreter in any matter brought before it and to translate any such
book, paper or writing produced to it; visit persons, police cells and other places of detention in
order to ascertain the conditions thereon and make recommendations to the appropriate authorities;
make determination as to the damages or compensation payable in relation to any violation of
human rights where it deems necessary in the circumstances of the case; co-operate with and
consult with other agencies and organizations, governmental and non-governmental as it may
deem appropriate; and do such other things as are incidental, necessary, conducive or expedient
for the performance of its functions under the Act.
11.3.4 Non-Governmental Organizations (NGOs)
NGOs like the Civil Liberties Organization (CLO), the Committee for the Defence of Human
Rights etc do also offer legal aid services as they deem fit. However, many of the NGOs provide
services in the limited areas of their interest like gender and fundamental human rights and they
do not usually deviate therefrom. Also lawyers in private practice without the payment of a fee
and in instances they consider deserving, take up cases of members of the public in the form of
legal aid, assistance or advice while others who are civil rights activists engage in what is known
as public interest litigation in matters which are in the general interest of the public.
PART FIVE: EXECUTIVE ORGANS FOR ADMINISTRATION OF JUSTICE
CHAPTER 13
EXECUTIVE INSTITUTIONS/BODIES CONNECTED WITH THE

ADMINISTRATION OF JUSTICE IN THE NIGERIAN LEGAL SYSTEM.
For the purpose of this topic, the administration of justice may be defined as the process by which
the legal system of a government is executed.
It includes the personnel, activity, and structure of the justice system. Specifically, it includes those
who work to investigate crimes, those who work in the trial process of the alleged crimes, laws
that govern investigative and court room activities, and the courts themselves. It also includes
agencies involved in the training, continuing legal education, appointment and discipline of
personnel involved the administration of justice and those vested with the duty of formulation of
relevant policies.
12.1 Relevant Institutions Concerned with Administration of Justice
This will be discussed under the following headings
Institutions Involved in Law Enforcement and Prosecution
Law enforcement agencies are agencies of government usually under the executive arm of
government vested with the duty (ies) of enforcing general or specific laws. Such laws usually
have penal provisions inherent in them which may be melted out on convicted violators. Most
times, these agencies have the powers of investigation and prosecution. Such agencies exist at the
three levels of government in Nigeria but our focus here will be on those at the federal level.
1. National Agency for Prohibition of Traffic in Persons (NAPTIP).

2. National Drug Law Enforcement Agency (NDLEA).
3. Nigeria Customs Service.
4. Nigeria Federal Road Safety Commission.
5. Nigeria Immigration Service.
6. Nigeria Security & Civil Defence Corps (NSCDC).
7. Nigeria Police.
8. Nigerian Correctional Service.
9. Economic and Financial Crimes Commission (EFCC).
10. Independent Corrupt Practices Commission (ICPC)
Ministries of Justice and Affiliated Institutions /Agencies
Our discussion of the agencies under the Ministry of Justice will be limited to that of the Federal
Ministry of Justice and they include:
(1) Council of Legal Education(CLE)

(2) National Drug Law Enforcement Agency(NDLEA)
(3) National Human Rights Commission.
(4) Nigerian Copyright Commission.
(5) Nigeria Institute of Advanced Legal Studies (NIALS).
(6) Nigeria Law Reform Commission
(7) Legal Aid Council of Nigeria.
(8) Regional Centre for International Commercial Arbitration.
The Nigerian Judiciary and Affiliated Institutions/ Agencies
The judiciary is the arm of government vested with the judicial powers of the state by virtue of
section 6 of the 1999 Nigerian Constitution. Its agencies include:
1. National Judicial Institute (NJI).

2. The National Judicial Council (NJC).
3. The Federal Judicial Service Commission and the State Judicial Service Commission
4. Judicial Service Committee of the Federal Capital Territory , Abuja
5. The Code of Conduct Bureau and Tribunal
12.1.1 Institutions Involved in Law Enforcement and Prosecution
1. National Agency for Prohibition of Traffic in Persons (NAPTIP).

The Agency was created on 14th of July 2003 by the Trafficking in Persons (Prohibition)
Enforcement and Administration Act 2003. In 2015, as a result of the new trends in the crime of
trafficking in persons and the need to further strengthen the institutional framework, the Act was
repealed and the Trafficking in Persons (Prohibition), Enforcement and Administration Act, 2015
was enacted. The functions of the Agency includes but not limited to the enforcement and
administration of the provisions of its Act; Co-ordinate and enforce all other laws on Trafficking
in persons and related offences; Adoption of effective measures for the prevention and eradication
of trafficking in persons and related offences; etc. Currently, the agency is under the supervision
of the Ministry of Humanitarian Affairs, Disaster Management and Social Development.
2. National Drug Law Enforcement Agency (NDLEA).

The Agency was established by the National Drug Law Enforcement Agency Act of 1989 to
enforce laws against the cultivation, processing, sale, trafficking and use of hard drugs and to
empower the Agency to investigate persons suspected to have dealings in drugs and other related
matters.
3. Nigeria Customs Service.

The Nigeria Customs Service (NCS) is an independent customs service under the supervisory
oversight of the Nigerian Ministry of Finance, responsible for the collection of customs revenue,
facilitation of both national and international trade and anti-smuggling activities. The Customs &
Excise Management Act (CEMA) Cap. 45, LFN, 2004 vests legal authority on the Nigeria
Customs Service to act on behalf of the Federal Government of Nigeria in all Customs matters.
The Act is supported by various other supplementary legislation.
4. Nigeria Federal Road Safety Commission.

The Federal Road Safety Corps is the Government Agency with statutory responsibilities for road
safety administration in Nigeria. The Commission among other functions is empowered to
determine and enforce speed limits for all categories of vehicles and controlling the use of speed
limiting devices. In the exercise of its functions, members of the Commission have the power to
arrest and prosecute persons reasonably suspected of having committed any traffic offence. See
the Federal Road Safety Commission Act.
5. Nigeria Immigration Service.

As empowered by Section 2 of the Immigration Act, 2015, the service is responsible for: the
control of persons entering or leaving Nigeria, the issuance of travel documents, including
Nigerian passports to bona fide Nigerians within and outside Nigeria. Border surveillance and
patrol, enforcement of laws and regulations with which they are directly charged; and the
performance of such para-military duties within or outside Nigeria as may be required of them
under the authority of the Act or any other enactment.
6. Nigeria Security & Civil Defence Corps (NSCDC).

The primary function of the NSCDC is to protect lives and properties in conjunction with the
Nigerian Police. One of the crucial function of the corps is to protect pipelines from vandalism.
The agency is also involved in crises resolution. See the NSCDC Act, 2007. The Corps among
other functions is empowered to assist in the maintenance of peace and order and in the protection
and rescuing of the Civil population during the period of emergency; recommend to the relevant
Minister the registration of private guard companies; maintain twenty-four hour surveillance over
infrastructures, sites and projects for the Federal, State and Local Government.
7. Nigeria Police: Discussed in detail in below.
8. Nigerian Correctional Service: Discussed in detail in below.
9. Economic and Financial Crimes Commission (EFCC): The Economic and Financial Crimes
Commission Act, 2004 mandates the EFCC to combat financial crimes. The Commission is
empowered to prevent, investigate, prosecute and penalize economic and financial crimes and is
charged with the responsibility of enforcing the provisions of other laws and regulations relating
to economic and financial crimes including: The Money Laundering Act 1995, The Money
Laundering(Prohibition) Act 2004, The Advance Fee Fraud and Other Related Offences Act 1995,
The Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, The Banks
and other Financial Institutions Act 1991; and Miscellaneous Offences Act, any other law or
regulations relating to economic and financial crimes, including the Criminal Code or Penal Code.
See 6 and 7 of the Act. In addition, the EFCC is the key agency of government responsible for
fighting terrorism. See S.15 of the Act.
10. Independent Corrupt Practices Commission (ICPC): The Commission is established by the
Corrupt Practices and Other Related Offences Act, 2000. Section 6 of the Act provides for the
duties of the Commission. The section provides that: “Where reasonable grounds exist for
suspecting that any person has conspired to commit or has attempted to commit or has committed
an offence under this Act or any other law prohibiting corruption, to receive and investigate any
report of the conspiracy to commit, attempt to commit or the commission of such offence and, in
appropriate cases, to prosecute the offenders; to examine the practices, systems and procedures of
public bodies and where, in the opinion of the Commission, such practices, systems or procedures
aid or facilitate fraud or corruption, to direct and supervise a review of them; to instruct, advise
and assist any officer, agency or parastatal on ways by which fraud or corruption may be eliminated
or minimized by such officer, agency or parastatal;
To advise heads of public bodies of any changes in practices, systems or procedures compatible
with the effective discharge of the duties of the public bodies as the Commission thinks fit to
reduce the likelihood or incidence of bribery, corruption, and related offences; to educate the public
on and against bribery, corruption and related offences, and to enlist and foster public support to
combating corruption.
12.1.2 Ministries of Justice and Affiliated Institutions /Agencies
There is a Ministry of Justice at the Federal level headed by the Attorney-General of the Federation
and Minister for Justice and Ministries of Justices for each of the Thirty-Six States of the
Federation headed by the State Attorney-Generals and Commissioners for Justice. The functions
of the Ministries of Justice at the two levels of government in Nigeria are largely similar.
The Federal Ministry of Justice is the legal arm of the Federal Government of Nigeria, primarily
concerned with bringing cases before the judiciary that are initiated or assumed by the government.
As stated earlier, it is headed by the Attorney General of the Federation who serves as the Minister
of Justice. The Attorney-General is appointed by the President, and is assisted by a Permanent
Secretary, who is a career civil servant.
There are various departments in the ministry which includes but not limited to: Public
prosecution, Citizens Rights, Law Reporting, Finance and Administration, Planning, Research and
Statistics, Legal Drafting, International and Comparative Law, Civil Litigation, Solicitors, Human
Resource Management and Procurement.
Functions of the Various Departments of the Federal Ministry of Justice
It should be noted that new departments are created and the functions of existing ones altered from
time to time and as the need arises. Some of these departments and their functions include:
1. The Office of the Attorney-General of the Federation: The Attorney-General is the head of
the Ministry.
2. The Office of the Solicitor-General of the Federation and Permanent Secretary of the
Ministry: The Solicitor-General is the Head of Administration and oversees the heads of
the other departments of the ministry.
3. The Office of the Director of Public Prosecutions (DPP): The DPP is in charge of all
criminal cases in the Ministry.
4. The Director of Civil Litigation (DCL): The DCL is in charge of all civil cases in the
Ministry.
5. The Legal Drafting Department: This office is in charge of the drafting of all proposed
Executive Bills to be sent to the National Assembly.
6. The Law Reporting Department: This is the department in charge of law reporting of
cases and production of law journals for the Ministry.
7. The Solicitors Department: This office renders legal opinions and advises to government,
corporations and individuals.
8. The Citizens‘ Rights Department: This office handles public complaints and violations of
human rights
9. Asset Recovery Department: This office is in charge of recovery of assets both locally
and internationally.
10. There are also departments of International Law and Administration of Justice.
Core Functions of the Federal Ministry of Justice
1. Ensuring access to justice for all persons and the observance of the rule of law and due
process by all MDAs.
2. Prosecuting crimes against the State and defending civil cases on behalf of Government;
Negotiating and vetting Contracts/Agreements on behalf of MDAs in order to protect
national interest.
3. Rendering timely quality legal advice and ancillary services to MDAs through the pool of
Legal Advisers posted to them.
4. Facilitating the early translation of Government policies into legislation through the
Ministry’s legal drafting function.
5. Ensuring close collaboration with stakeholders, government agencies, civil society and the
international community in order to improve on justice delivery.
6. Advising government on its treaty obligations, in addition to other sundry services to the
legal profession.
7. Providing guidelines on international and local asset recovery regime.
8. Tracking of all assets recovered on behalf of the federal government by various law
enforcement and anti-corruption agencies.
9. Assisting the Ministry of Finance in developing a Whistle-Blowers’ Policy.
Affiliated Institutions
Council of Legal Education
The Council is established by Section 1 of the Legal Education Act, 1962 which later became the
Legal Education (Consolidation etc) Act, 1976 contained in CAP.10, Volume 8, LFN, 2004. By
Section 1(1) of the Act, the Council is a body corporate with perpetual succession and a common
seal. It was established mainly to run the Nigerian Law School, particularly regarding policy
matters.
The functions of the Council are: Responsibility for the Legal Education of persons seeking to
become members of the legal profession. See S.1 (2) of the Act. The Council discharges this
function through the institution of the Nigerian Law School, which gives professional and practical
legal education to persons seeking to become legal practitioners; continuing legal education for
legal practitioners. See S.3 of the Act; The issuance of qualifying certificates to persons qualified
for call to the Bar. See Section 5 of the Act. The Council also has incidental powers. The Act by
Section 2(5) empowers the Council to do such things as are expedient for the purpose of its
functions.
National Human Rights Commission
The National Human Rights Commission of Nigeria is established by the National Human Rights
Commission Act of 1995, as amended in 2010 for the promotion and protection of all human rights.
In particular, the Commission has the mandate to deal with all matters relating to the protection of
human rights in Nigeria as guaranteed by the Nigerian Constitution, the African Charter on Human
and Peoples Rights, the United Nations Charter, the Universal Declaration on Human Rights and
other international human rights treaties to which Nigeria is a party. By the 2010 amendment, the
Commission now has quasi-judicial powers to summon persons, evidence and to award
compensation and enforce its decisions. It also has power to visit any place of detention with a
view to ensuring that detainees’ rights are not violated. See Part II Section 5 of the Act.
The National Human Rights Commission will be discussed in detail under the topic Legal Aid and
Advice.
Nigerian Copyright Commission
The Commission is established under section 34 of the Copyright Act (Cap C28, LFN, 2004). The
Nigerian Copyright Commission was inaugurated on 19th August 1989, first as the Nigerian
Copyright Council. It was elevated to the status of a commission in April, 1996. The Commission
is the Government agency responsible for all copyright matters in Nigeria including the
administration, regulation, enforcement and prosecution under the Copyright Act. The
Commission may sue and be sued in its corporate name.
Nigerian Law Reform Commission
The Nigerian Law Reform Commission was established by the Nigerian Law Reform Commission
Act No.7 1979. The functions of the Commission are stated in S. 5 of the Act thus: “It shall be the
duty of the Commission generally to take and keep under review all federal laws with a view of
their systematic and progressive development and reform in consonance with the prevailing norms
of the Nigerian society including, in particular, the codification of such laws, the elimination of
anomalies, the repeal of obsolete, spent and unnecessary enactments, the reduction in number of
separate enactments, the reform of procedural laws in consonance with changes in the machinery
of the administration of justice and generally the simplification and modernization of the law.”
In the exercise of its statutory functions the Commission is expected to receive and consider
proposals for reforms that may be referred to it by the Attorney-General of the Federation or it
may initiate and submit to the Attorney-General from time to time programmes for the examination
of different branches of the law and the formulation by means of draft legislation or otherwise of
proposals for reform therein.
The Commission is given power to consider proposals for the reform of state laws from any state,
group of states or all the states and report to the appropriate Attorney-General or Attorneys
General. See S. 7 of the Act. The Commission may also provide expert advice and information to
the Federal Government Ministries, Departments or other institutions at the instance of the Federal
Government with regard to proposals for the reform or amendment of any branch of the law.
Pursuant to its programmes of law reform, the commission may conduct such seminars and, where
appropriate, hold such public sittings concerning any programme for law reform as it may consider
necessary from time to time. See S.5 (5) of the Act.
The Nigerian Institute of Advanced Legal Studies
Established by the Nigerian Institute of Advanced Legal Studies Act 1984, it is a body corporate
with perpetual succession and common seal and may sue and be sued in its corporate name. The
management of the Institute is undertaken by the Nigerian Institute of Advanced Legal Studies
Council which is made up of the following members: A chairman appointed by the President of
Nigeria, a representative of the Federal Ministry of Justice; a representative of the Federal Ministry
charged with responsibility for higher education; Six Deans or heads of faculties or other
formations of Nigerian Universities offering graduate level programmes to be appointed by the
President; The Director General of the Nigerian Law School; One member of the judiciary
nominated by the Chief Justice of Nigeria; The President of the Nigerian Bar Association; Five
persons of whom one shall be woman to be appointed by the President of Nigeria and the Director-
General of the Institute.
Functions of the Institute: Section 4 NIALS Act, 1984 provides of its functions which are: To
provide information, supervision, guidance and advice to post graduate students and other
researchers who are working for post graduate degree of any university in the field of law and
related subjects; to conduct research into any branch of the law or related subject with a view of
the application of the results thereof in the interest of the country; from time to time to organize,
host, arrange and conduct national or international seminars, symposia, conference, workshops,
lectures on any branch of the law or related subject; to prepare and publish books, records, reports
and journals as may seem desirable for the dissemination of research findings, seminars, symposia,
conference, findings of workshops and lectures;
To co-operate with Nigerian Universities, Nigerian Law School, the Nigeria Law Reform
Commission and such other bodies (whether in Nigeria or elsewhere) engaged in any major field
relating to law reform, development or research in the mobilization of the country’s research
potentials for the task of national development and dissemination of research findings for the use
of policy makers at all levels and to carry out such activities as are necessary and expedient for the
full discharge of any of its functions under or pursuant to the Act.
Regional Centre for International Commercial Arbitration
The Regional Centre was established under the auspices of the Asian-African Legal Consultative
Organization (AALCO) in 1989 on the basis of a cooperation agreement through exchange of
letters in 1980 between AALCO and the Federal Government of Nigeria as host.
The main functions of the Regional Centre are: Promote international commercial arbitration in
the African region; Administer international arbitration under the arbitration rules of the Centre
which are based on the UNCITRAL Arbitration Rules, 1976; Render assistance in the enforcement
of arbitral awards made under the auspices of the Centre; Render (arbitration related) advice and
assistance to parties who may approach the Centre; administer domestic commercial arbitration
governed by the Nigerian Arbitration and Conciliation Act, 1988; Provide administrative
assistance and technical facilities to parties involved in ad hoc arbitral references for a fee.
Provide facilities for arbitration under its cooperation agreements with the International Centre for
the Settlement of Investment Disputes (ICSID), London Court of International Arbitration (LCIA),
American Arbitration Association International branch, Dublin (AAA), City Dispute Panel in
London and China.
The definition of ‘international’ and ‘commercial’ under the Rules are very wide. Arbitration of a
dispute of an international character means the parties involved in the dispute are resident in or
nationals of two different jurisdictions or the dispute itself involves international commercial
interests. On the commercial nature of disputes, the Regional Centre administers disputes arising
from all forms of commercial transactions including those emanating from bilateral and
multilateral trade agreements.
12.1.3 Judiciary and Affiliated Institutions
Section 6 of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 generally provides
for the judicial powers of the Federation and the States. It establishes the Superior Courts in
Country which are: the Supreme Court of Nigeria; the Court of Appeal; the Federal High Court;
the National Industrial Court; the High Court of the Federal Capital Territory, Abuja; a High Court
of a State; the Sharia Court of Appeal of the Federal Capital Territory Abuja; a Sharia Court of
Appeal of a State; the Customary Court of Appeal of the Federal Capital Territory, Abuja; a
Customary Court of Appeal of a State; Such other courts as may be authorized by law to exercise
jurisdiction on matters with respect to which the National Assembly may make laws; Such other
courts as may be authorized by law to exercise jurisdiction at first instance or on appeal on matters
with respect to which a House of Assembly may make laws and these courts shall be the only
superior courts of record in Nigeria. It however empowers the National Assembly or any House of
Assembly to establish courts other than those listed above with subordinate jurisdiction to that of
a High court and conversely, the power to abolish any court which the relevant legislature has the
power to establish or which it has brought into being. The affiliated institutions of the Judiciary
include:
National Judicial Institute (NJI).
The National Judicial Institute was established by Decree No.28 of 1991 as amended by Decree
No. 15 of 1999, now Act N55 Laws of the Federation of Nigeria; 2004 which has been amended
by the National Judicial Institute (Amendment) Act, 2016. It is managed by a Board of Governors,
which is composed by the Chief Justice of Nigeria as Chairman, Attorney-General of the
Federation and Minister of Justice, the most Senior Justice of the Supreme Court, President of the
Court of Appeal, Chief Judge of the Federal High Court, Chief Judges of all the 36 States and the
Federal Capital Territory, two Grand Kadis of the Sharia Courts of Appeal and two Presidents of
Customary Courts of Appeal, respectively, among other members.
The Chief Executive of the Institute is addressed as the Administrator of the National Judicial
Institute.
The objectives and functions of the Institute as provided by section 3 of the National Judicial
Institute Act are as follows:
1. The Institution shall serve as the principal focal point of judicial activities relating to the
promotion of efficiency, uniformity and improvement in the quality of judicial services in the
superior and inferior courts in Nigeria.
2. In furtherance of the above, the Institute is empowered to conduct courses for all categories of
judicial officers and their supporting staff with a view to expanding and improving their overall
knowledge and performances in their different sections of service.
3. Provide continuing education for all categories of judicial officers by undertaking, organizing,
conducting and facilitating study courses, lectures, seminars, workshops, conferences and other
programs related to judicial education;
4. Organize once in two years a conference for all Nigerian Judges of Superior and Lower Courts
respectively.
5. Disseminate by way of publication of books, journals, records, reports or other means of

information about any part of its activities to the extent deemed justified by the Board of Governors
generally as a contribution towards knowledge and;
6. Promote or undertake any other activity which in the opinion of the Board is calculated to help
achieve the purpose for which the Institute was established.
National Judicial Council
The National Judicial Council is a body established under section 153(1) of the 1999 Constitution
with powers relating to appointments and exercise of disciplinary control over Judicial Officers
specified in paragraph 21 of Part 1 of the Third Schedule of the Constitution. By the same
paragraph it also has power to collect, control and disburse all monies, capital and recurrent, for
the judiciary and to deal with all matters relating to policy and administration.
Federal Judicial Service Commission and State Judicial Service Commission
Sections 153(1)(e) and 197(1)(c) of the Constitution of the Federal Republic of Nigeria, 1999
establishes the Federal Judicial Service Commission and the State Judicial Service Commission
respectively and the composition and powers of each are also respectively contained in parts I and
II of the Third Schedule to the Constitution.
The Federal Judicial Service Commission has the power to advise the National Judicial Council in
nominating persons for appointment, as respects appointments to the office of: the Chief Justice
of Nigeria; a Justice of the Supreme Court; the President of the Court of Appeal; a Justice of the
Court of Appeal; the Chief Judge of the Federal High Court; a Judge of the Federal High Court,
and the President of the National Industrial Court; a Judge of the National Industrial Court; and
the Chairman and members of the Code of Conduct tribunal.
The Commission is also empowered to recommend to the National Judicial Council, the removal
from office of the judicial officers listed above and appoint, dismiss and exercise disciplinary
control over the Chief Registrars and Deputy Chief Registrars of the Supreme Court, the Court of
Appeal, the Federal High Court, the National Industrial Court and all other members of the staff
of the judicial service of the Federation not otherwise specified in this Constitution and of the
Federal Judicial Service Commission.
The State Judicial Service Commission has the power to advise the National Judicial Council on
suitable persons for nomination to the office of: the Chief Judge of the State; the Grand Kadi of
the Sharia Court of Appeal of the State, if any; the President of the Customary Court of Appeal of
the State, if any; Judges of the High Court of the State; Kadis of the Sharia Court of Appeal of the
State, if any; and Judges of the Customary Court of Appeal of the State, if any.
The State Judicial Service Commission shall subject to the provisions of the Constitution have the
power to recommend to the National Judicial Council the removal from office of the Judicial
officers listed above and to appoint, dismiss and exercise disciplinary control over the Chief
Registrar and Deputy Chief Registrar of the High Court, the Chief Registrars of the Sharia Court
of Appeal and Customary Court of Appeal, Magistrates, Judges and members of Area Courts and
Customary Courts and all other members of the staff of the judicial service of the State not
otherwise specified in this Constitution.
Judicial Service Committee of the Federal Capital Territory, Abuja
Section 304(1) of the 1999 Constitution of Nigeria provides that: “There shall be for the Federal
Capital Territory, Abuja, a Judicial Service Committee of the Federal Capital Territory, Abuja, the
composition and functions of which shall be as provided in Part III of the Third Schedule to the
Constitution.
Paragraph 2 of Part III of the Third Schedule to the Constitution states the powers of the Committee
as follows: “To recommend to the National Judicial Council suitable persons for nomination for
appointment to the office of – the Chief Judge of the Federal Capital Territory, Abuja, a Judge of
the High Court of the Federal Capital Territory, Abuja, the Grand Kadi of the Sharia Court of
Appeal of the Federal Capital Territory, Abuja, the President of the Customary Court of Appeal of
the Federal Capital Territory, Abuja, a Kadi of the Sharia Court of Appeal of the Federal Capital
Territory, Abuja, a Judge of the Customary Court of Appeal of the Federal Capital Territory,
Abuja.” The Constitution also empowers the Committee subject to the provisions of the
Constitution, to recommend to the National Judicial Council the removal from office of the judicial
officers listed above.
The Committee is likewise authorized to appoint, promote and exercise disciplinary control over
the Chief Registrar and Deputy Chief Registrars of the High Court, the Sharia Court of Appeal and
the Customary Court of Appeal of the Federal Capital Territory, Abuja, magistrates, the judges
and members of the District and Area Courts of the Federal Capital Territory, Abuja, if any, and
all other members of the staff of the judicial service of the Federal Capital Territory, Abuja not
otherwise specified in this Constitution and of the Judicial Service Committee of the Federal
Capital Territory, Abuja.
The Code of Conduct Bureau and Tribunal
The Code of Conduct Bureau and Tribunal are established by the Code of Conduct Bureau and
Tribunal Act, 1991. In its Long Title, the Act is said to provide for the establishment of the Code
of Conduct Bureau and Tribunal to deal with complaint of corruption by public servants for the
breaches of its provisions.
Section 1 Part 1 of the Act provides that ‘there is hereby established a bureau to be known as the
Code of Conduct Bureau (in this Act referred to as “the Bureau”). The Bureau shall consist of a
chairman and nine other members who shall be – persons of unimpeachable integrity in the
Nigerian society; and at the time of appointment, not less than fifty years. The chairman and the
other members shall be appointed by the President subject confirmation of the Senate. The
chairman and any member shall vacate office upon attaining the age of seventy.’
By Section 2 of the Act, the aims and objectives of the Bureau shall be to establish and maintain a
high standard of morality in the conduct of government business and to ensure that the actions and
behaviour of public officers conform to the highest standards of public morality and accountability.
Section 3 of the Act provides for the functions of the Bureau which are to: receive assets
declarations by public officers in accordance with the provisions of the Act; examine the assets
declarations and ensure that they comply with the requirements of the Act and of any law for the
time being in force; take and retain custody of such assets declarations; and receive complaints
about non-compliance with or breach of this Act and where the Bureau considers it necessary to
do so, refer such complaints to the Code of Conduct Tribunal established by section 20 of the Act
in accordance with the provisions of sections 20 to 25 of the Act. Provided where the person
concerned makes a written admission of such breach or non-compliance, no reference to the
Tribunal shall be necessary.
Section 20 of the Act provides that ‘there is hereby established a tribunal to be known as the Code
of Conduct Tribunal (in this Act referred to as ‘the Tribunal’). The Tribunal shall consist of a
chairman and two other members. The chairman shall be a person who has held or is qualified to
hold office as a Judge of a superior court of record in Nigeria and shall receive such remuneration
as may be prescribed by law.
The chairman and other members of the Tribunal shall be appointed by the President on the
recommendation of the National Judicial Council. The National Assembly may by law confer on
the Tribunal such additional powers as appear to it to be necessary to enable the Tribunal to
discharge more effectively the functions conferred on it under this Act.’
Section 23(1) of the Act provides for the powers of the Tribunal to impose punishments: ‘Where
the Tribunal finds a public officer guilty of contravening any of the provisions of this Act, it shall
impose upon that officer any of the punishments specified under subsection (2) of this section.
Subsection 2 provides that: ‘The punishment which the Tribunal may impose shall include any of
the following: vacation of office or any elective or nominated office, as the case may be;
disqualification from holding any public office (whether elective or not) for a period not exceeding
ten years; and seizure and forfeiture to the State of any property acquired in abuse or corruption of
office.’ Subsection 3 provides that: ‘The punishments mentioned in subsection 2 of this section
shall be without prejudice to the penalties that may be imposed by any law where the breach of
conduct is also a criminal offence under the Criminal Code or any other enactment or law.’
On the Rules of procedure and institution of proceedings, the Act provides that the rules of
procedure to be adopted in any prosecution for the offences under this Act before the Tribunal,
and the forms to be used in such prosecution shall be as set out in the Third Schedule to the Act.
See section 24(1) of the Act.
Prosecutions for all offences referred to in the Act shall be instituted in the name of the Federal
Republic of Nigeria by the Attorney-General of the Federation or such officers in the Federal
Ministry of Justice as the Attorney-General of the Federation may authorize so to do. See Section
24(2) of the Act.
The Attorney-General of the Federation may after consultation with the Attorney-General of any
State in the Federation, authorize any officer of the Ministry of Justice of the State concerned to
undertake any such prosecutions directly or assist therein; or if the Tribunal so requests, or if the
contingencies so dictate, authorize any other legal practitioner in Nigeria to undertake any such
prosecution or assist therein. Provided that the question whether any authority has been given in
pursuance of this subsection shall not be inquired into by any person. See Section 24(3) (a) & (b)
of the Act.
Any person accused of any offence referred to in this Act shall be entitled to defend himself in
person or by a person of his own choice who is a legal practitioner resident in Nigeria. See Section
24(4) of the Act.
Where the Tribunal gives a decision as to whether or not a person is guilty of a contravention of
any of the provisions of this Act, an appeal shall lie as of right from such decision or from any
punishment imposed on such person to the Court of Appeal at the instance of any party to the
proceedings. See S.23(4).
Any right of appeal to the Court of Appeal from the decision of the Tribunal conferred by
subsection(4) of section 23 shall be exercised in accordance with the provisions of the rules of
court for the time being in force regulating the powers, practice and procedure of the Court of
Appeal. See S.23(5).
Nothing in section 23 of the Act shall prejudice the prosecution of a public officer punished under
the section, or preclude such officer from being prosecuted or punished for an offence in a court
of law. See S.23(6).
The provisions of the Constitution of the Federal Republic of Nigeria 1999, relating to prerogative
of mercy, shall not apply to any punishment imposed in accordance with the provisions of this
section. See S.23(7).
12.2 Establishment and Functions of Specific Institutions for Administration of Justice
12.2.1 Office of the Attorney-General of the Federation 90
Section 150(1) of the 1999 Constitution provides that ‘There shall be an Attorney-General of the
Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government
of the Federation.’
Sub-section 2 of the above section provides that ‘A person shall not be qualified to hold or perform
the functions of the office of the Attorney-General of the Federation unless he is qualified to
practice as a legal practitioner in Nigeria and has been so qualified for not less than ten years.’
90
The discussion applies equally to the office of the Attorney-General of States
Powers, Functions and Duties of the Attorney-General
1. Administrative Duties.
2. The role of the Attorney-General as Chief Law Officer of the State; and
3. The Attorney-General as the Guardian of the Public Interest.
Administrative Duties
The Administrative duties of the Attorney-General are stated by Judge Bola Ajibola thus:
The Attorney-General is both the Chief Legal Adviser and the administrative head of the
Ministry of Justice. This is why he is described as the Attorney-General and Minister of
Justice. He is therefore, clothed with official legal assignments and bureaucratic functions.’
Like any other Minister, the Attorney-General is responsible for the day-to-day running of
his Ministry. He tables his Ministry’s needs and problems to the Federal Executive Council.
‘He and nobody else, is answerable to the Government in respect of acts done by his
Ministry.’
He is responsible for the formulation of legal policy, in the realms of legal education, law
reform, administration of justice and the maintenance of ethics and good practice at the
Bar91. It is his duty to chart the directions for the development of the law during his tenure
of office.
The task of formulating and shaping legal policy is achieved mainly through the
supervisory powers conferred on the Attorney-General by certain important statutory legal
bodies. They are: (i) Council of Legal Education. (ii)Law Reform Commission (iii) Legal
Aid Council (iv) Legal Practitioners Disciplinary Committee.
The Attorney-General of the Federation also serves as a member of the Legal Practitioners
Privileges Committee; which is the body charged with the responsibility of conferring the
rank of Senior Advocate of Nigeria (SAN) on deserving members of the profession. He is
also a member of the Body of Benchers. The body comprises the profession’s most
distinguished and respected members charged with the responsibility of admitting new
wigs to the profession. ‘The Attorney-General’s membership of these bodies in his capacity
as a Government Minister and Legal Adviser of the State and a legal practitioner is a crucial
one. The proper performance of his roles here involves the use of the positions of the three
91
He is the Chairman of the General Council of the Bar responsible for the Rules of Professional Conduct in the Legal
Profession
interests he represents to enrich the deliberations of these bodies, and influence their
decisions positively for the progress of law and justice.92
The A.G as Chief Law Officer of the State and Legal Adviser to the Government
The Attorney-General sits as an adviser on the National Council of States. In the Federal Executive
Council, he sits in his capacity as a Minister and also as a legal adviser to the Council. He defends
and initiates all civil actions for and on behalf of the government.
The Attorney-General owes a duty to himself and the legal profession to which he belongs
to clearly advise his chief executive to desist from disobeying court orders. If after such
clear advice, the chief executive be the governor or president persists in disobeying court
orders then the A.G should have the strength of character to protect his own integrity and
that of the profession by resigning his appointment.93
‘The Attorney-General, who is the commissioner for justice in a state, is the chairperson of the
Committee on the Prerogative of Mercy. It cannot be over-emphasized that this is another sacred
and delicate duty exercisable by the governor after consultation with the committee presided over
by the attorney-general. The Attorney-general is therefore under a duty to ensure that in the interest
of justice, the advice and recommendations rendered to the Governor must be free from purely
political and personal considerations’.94
‘The A.G should also ensure the speedy trial of criminal cases and encourage the granting of bail
in appropriate cases in criminal trials so as to effectively decongest the Prisons.’95
The Attorney-General as a Guardian of Public Interest
His powers in this regard traverses both Criminal and Civil Proceedings.
92
See Bola Ajibola, SAN, Fundamentals of Nigerian Law (Ed.) M. Ayo Ajomo, (NIALS 1989) 27-29.
93
See D.A. Ijalaye: ‘The Role of the Law Officer under Nigerian Law’ in ‘A Living Judicial Legend: Essays in Honour of
Honourable Justice A.G. Karibi-Whyte (CON), (Ed.) Niki Tobi (Florence & Lambard (Nigeria) Ltd, Lagos, Nigeria 2006)
63.
94
See D.A. Ijalaye, supra at 61. See also Sections 175 and 212 of the 1999 Constitution on Prerogative of Mercy.
95
See D.A. Ijalaye supra at 64.
Criminal Proceedings:
By Section 174(1)(a) of the 1999 Constitution(as amended), the Federal Attorney-General shall
have power to:
(a) to institute Criminal proceedings against any person before any court of law in Nigeria, other
than a court martial, in respect of any offence created by or under any Act of the National
Assembly. See Sections 104(1), 106 of the Administration of Criminal Justice Act (ACJA), 2015.
(b) to take over and continue any such criminal proceedings that may have been instituted by any
other authority or person; and
(c) To discontinue at any stage before judgment is delivered any such criminal proceedings
instituted or undertaken by him or any authority or person.
(2)The powers conferred upon the Attorney-General of the Federation under subsection (1) of this
section may be exercised by him or through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of the Federation shall have
regard to public interest, the interest of justice and the need to prevent abuse of legal process.
Section 211(1) of the Constitution provides for the powers of the Attorney-General of a State in
respect of public prosecutions.
The Federal Attorney-General can institute criminal proceedings in respect of offences created by
Federal Legislation, while the State Attorney General can institute proceedings in respect of
offences created by the State Laws. The Supreme Court held in Anyebe v The State96, that the
Benue State A.G cannot validly prosecute an accused for an offence under Section 28 of the
Firearms Act, an offence under the exclusive legislative list of the 1979 Constitution except with
the express authority by the A.G of the Federation to prosecute such offence.
Note however that in Emelogu v The State97 and Sadiku v The State98, the Supreme Court held that
a State Attorney General could prosecute an accused under Armed Robbery (Special Provisions)
Decree 1970 though the enactment is a Federal Legislation, as it is meant to operate within the
state such law is usually deemed to be a law made by the state’s legislative body. See Mohammed
v The State99
Note however that the Armed Robbery (Special Provisions) Decree is a military promulgation
which is made without advertence to the legislative lists contained in the Constitution. Also the
offences of robbery and armed robbery are equally provided for under the criminal and penal codes
96
(1986) 1 S.C 87
97
(1988) 2 NWLR(pt.78) 524
98
(2013) 11 NWLR(pt.1364) 191
99
(2015) 10 NWLR (pt.1468) 496.
of various states and accused persons could be charged contrary to appropriate sections of these
laws by the Attorney General of a State.
Delegation of Power by the Attorney-General
The Attorney-General be it Federal or State, can delegate his powers to any of the officers of his
department. Note Sections 174(2) or Section 211(2) of the 1999 Constitution and Section 104(2)
of the ACJA, 2015, which provides that the Attorney General’s powers can be exercised by him
in person or any officer of his department. Even in the absence of an Attorney General, these
functions (with the exception of the powers of entry of nolle prosequi), can be carried out by
officers of his department. See State v. Obasi100
The A.G in delegating his powers is free to delegate all his powers to his subordinates. See Ibrahim
v The State101. In this case, the Supreme Court although frowned at the attitude of an Attorney
General delegating all his powers, still held that such delegation was valid. This is because under
Section 174(3) or 211(3) of the 1999 Constitution, which applies to the whole section, the Attorney
General possesses an unquestionable discretion. The Court however noted that if the Attorney
General had delegated his powers to the Director of Public Prosecution (DPP) alone, it would be
wrong for the DPP to delegate same to his subordinates. The maxim is ‘delegatus non potest
delegare’ meaning ‘a delegate cannot sub delegate’.
Note that where there is a blanket delegation by the A.G., a State Counsel can validly sign the
information in his name, without naming the Attorney-General as the ultimate authority. See
Ibrahim v. The State (supra).
Can a Private Legal Practitioner Prosecute on behalf of the Attorney-General?
It is a settled position of the law that in instituting criminal proceedings, the A.G. can after filing
information in the court, call upon a private legal practitioner, or any officer of his department
armed with a fiat to prosecute on his behalf. See FRN v Adewunmi102. See also The State v
Aibangbee103.
The A.G. has an absolute discretion in deciding who to prosecute and for what offence(s), where
several people commit the same offence(s). He need not give reasons for his decision.104
The A.G. advises the police in the prosecution of cases and also has the power to take over the
prosecution of any case. His discretion in exercising this power is absolute. See S.105 of the ACJA
which provides that the Attorney-General of the Federation may issue legal advice or such other
directive to the Police or any other law enforcement agency in respect of an offence created by an
100
(1998) NWLR (pt. 567) 686; See also AGF v A.N.P.P & 2 Ors (2003) 18 NWLR (pt.851) 182.
101
(1986) 1 NWLR (pt.18) 650
102
(2007) All FWLR (pt. 368) 978
103
(1988) 3 NWLR 548
104
See A.G. Oyo State v DPP Oyo State (1982) 1 N.C.R. 209.
Act of the National Assembly. Where any proceeding is pending in respect of the offence for which
legal advice or other direction referred to in subsection(1) of this section is given, a copy of the
legal advice or direction shall be forwarded by the Attorney-General of the Federation or Director
of Public Prosecutions to the court before whom the proceeding is pending. The Attorney-General
of the Federation may request from the Police or any other agency for the case file in any matter
in respect of an offence created by an Act of the National Assembly and the Police or other agency
shall immediately send the case file as requested. See generally Sections 104-106 of ACJA on the
powers of the Attorney-General under the Act and Sections 107 and 108 on the powers of the
Attorney-General in relation to discontinuance of criminal cases and withdrawals from prosecution
in trials and inquiries before a court.
Under the ACJA, where a trial court finds that the defendant who is of unsound mind committed
the act alleged, the court before which the trial has been held shall, where the act would have but
for the findings of incapacity constituted an offence, order the person to be kept in safe custody in
such place and manner as the court thinks fit and shall within 31 days of the order, report the case
for an order of the Attorney-General of the Federation. The Attorney-General of the Federation
may at his discretion order the defendant to be confined in a mental health asylum, prison or other
suitable place of safe custody. In exercising this discretion, the Attorney-General of the Federation
shall ensure that the defendant is placed in such facility as to afford him adequate care at the
expense of the State. See Sections 285 and 286(1) and (2) of ACJA.
Nolle Prosequi
The A.G. under Section 174(1) (c) or 211(1)(c) of the 1999 Constitution has power to discontinue
at any stage before judgment any Criminal proceedings. This is generally referred to the as the
power of nolle prosequi. See also Sections 73 Criminal Procedure Law; 107(1) of the ACJA, 2015
and 253(2) Criminal Procedure Law of Lagos State. This power is exercisable by the A.G. in
person, upon informing the court of his intention to discontinue the proceedings or by an officer
of the A.G.’s department armed with a written authority of the A.G. See The State v Ilori105. Note
that where there is no incumbent A.G. no officer of his department, not even the Director of Public
Prosecutions (DPP) or Solicitor General can validly exercise the power of nolle prosequi on the
A.G’s behalf. See A.G. Kaduna State v Hassan106.
Distinguish this situation from the ordinary power of withdrawal conferred on the prosecutor under
Section 75 Criminal Procedure Law of Lagos State to withdraw from criminal trial before a Court.
In this respect, see Clarke v The A.G. of Lagos State107. The Court, under Section 75 Criminal
Procedure Law, not only has to consent to the withdrawal, the prosecutor is enjoined to adduce
reasons for such withdrawal. Compare with Section 108 of the ACJA, 2015. In the Clarke’s case,
it was held that ‘Under section 75 of the C.P.L of Lagos State peculiar to trial in the Magistrates
105
(1983) 2 S.C. 155
106
(1985) 2 NWLR (pt.8) 483
107
(1986)1 Q.L.R.N. 119
Court, a withdrawal with leave of court, before the accused has been called to make his defence,
entitles the court to discharge and not acquittal unless there are no merits in the case of the
prosecution then it may acquit’.
In exercising the power of nolle, the A.G. may be influenced by whatever reason, however
frivolous. Consequently, the Supreme Court held in The State v. Ilori supra, that Section 191(3)
of the 1979 Constitution which provides that the A.G. ‘shall have regards to public interest, the
interest of justice and the need to prevent abuse of legal process’ is merely declaratory and not
directory. If the A.G. therefore disregards the provision(s), the only sanction against him is
removal by his appointer; adverse criticism by the public or instituting a civil claim against the
A.G. but the plaintiff must be able to show the damages suffered. The effect of nolle, when
effectively entered is a discharge of the accused person and not an acquittal. See Section 73(3)
CPL, The State v Ilori supra; Clarke v A.G. Lagos State, supra.
The effect of this is that the accused may be subsequently prosecuted for the same offence. In
respect of Section 75 CPL, the Court in the Clarke’s case held that: ‘Under section 301(1) of the
CPL of Lagos State, a discharge stated to be on the merits has the same effect as an acquittal. If a
discharge is not expressly stated to be on the merit, the intention may be gathered from reasons
given for discharge or course of the case.’
Civil Proceedings.
The powers of the Attorney-General in relation to Civil Proceedings although not as well-known
as his powers in criminal trials are nevertheless as important. Here again, the Attorney-General is
regarded as the sole defender of public rights.
However, the Attorney-General’s powers in this regard are restricted to assertions of public rights
or redress of public wrongs. Public wrongs are those torts or improper acts which are committed
by individuals or government agents or agencies and which adversely affect the public at large. At
Common Law, where a public wrong or tort such as a public nuisance is committed it is trite law
that a private individual cannot go to court to redress such wrong unless he can show that he has
suffered greater damage than other members of the public.
The proper plaintiff where a public wrong is committed is therefore the Attorney-General.
However, there is a Common Law procedure by which an individual may seek the consent of the
Attorney-General to act as plaintiff to redress a public wrong. Such an action is described as a
Relator Action. It is, however, at the absolute discretion of the Attorney-General that such consent
may be given.
The Attorney-General’s duty as the guardian of public interest in civil matters is very amply
demonstrated in respect of the tort of public nuisance.
It would however appear that this common law position has been voided by the Supreme Court in
Adediran v Interland108, where the Court held that: “…thus the restriction imposed at common law
on the right of action in public nuisance is inconsistent with the provision of S.6 (6) (b) of the
Constitution, 1979 and to that extent is void”.
Other statutory duties of the Attorney-General are provided in varied legislation. Examples are –
the duty of the Attorney-General with respect to the garnishee of money in the hands of a public
officer where a private citizen has a claim against another citizen to whom the money is due from
a Federal Government Department. Also, the memorandum of a company limited by guarantee
shall not be registered without the authority of the Attorney-General of the Federation. See S.26
(4) CAMA 2020. Generally, it is also within the purview of the Attorney-General’s powers to
make arrangements for the setting up of the various Judicial and Administrative Tribunals.
12.2.2 The Nigeria Police Force
Section 214 of the 1999 Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as
amended) establishes the Nigeria Police Force and expressly provides that no other police force
shall be established for the Federation or any part thereof. See Section 214(1) CFRN. The Nigeria
Police is organized and administered in accordance with the Police Act and the members of the
Nigeria Police have such powers and duties as may be conferred upon them by law. Section 214(2)
(b) of the Constitution.
The Inspector-General of Police (IGP) is the head of the Nigeria Police Force. He is appointed by
the President of Nigeria on the advice of the Nigeria Police Council from among serving members
of the Nigeria Police Force. A Commissioner of Police for each State of the Federation who shall
be appointed by the Police Service Commission. See Sections 215(1) (a) & (b) CFRN.
The Nigeria Police Force is under the command of the IGP and any contingents of the Nigeria
Police Force stationed in a State shall, subject to the authority of the IGP, be under the command
of the Commissioner of Police of that State. See Section 215(2) CFRN.
The President or such other Minister of the Government of the Federation as he may authorized in
that behalf may give to the IGP such lawful directions with respect to the maintenance and securing
of public safety and public order as he may consider necessary, and the IGP shall comply with
those directions or cause them to be complied with. The Governor of a State or such Commissioner
of the Government of the State as he may authorize in that behalf, may give to the Commissioner
of Police of that State such lawful directions with respect to the maintenance and securing of public
safety and public order within the State as he may consider necessary, and the Commissioner of
Police shall comply with those directions or cause them to be complied with. Provided that before
carrying out any such directions under the foregoing provisions of this subsection the
Commissioner of Police may request that the matter be referred to the President or such Minister
108
(1991) 2 N.S.C.C 707 at 719 lines 31-39
of the Government of the Federation as may be authorized in that behalf by the President for his
directions. The jurisdiction of the court is ousted from inquiring whether any, and if so what,
directions have been given in this regard. See Sections 215(3), (4) & (5) CFRN.
Subject to the provisions of the Constitution, the Nigeria Police Council may, with the approval of
the President and subject to such conditions as it may think fit, delegate any of the powers
conferred upon it by this Constitution to any of its members or to the IGP or any other member of
the Nigeria Police Force. See Section 216(1) CFRN.
Before making any appointment to the office of the Inspector-General of Police or removing him
from office the President shall consult the Nigeria Police Council. See Section 216(2) CFRN, 1999.
Section 4 of the Police Act, 2020 provides that the Police Force shall prevent and detect crimes
and protect the rights and freedom of every person in Nigeria as provided in the Constitution, the
African Charter on Human and Peoples Rights and any other law; maintain public safety, law and
order; protect the lives and property of all persons in Nigeria; enforce all laws and regulations
without any prejudice to the enabling Acts of other security agencies;
Discharge such duties within and outside Nigeria as may be required of it under the Act or any
other law; collaborate with other agencies to take any necessary action and provide the required
assistance or support to persons in distress, including victims of road accidents, fire disasters,
earthquakes and floods; facilitate the free passage and movement on highways, roads and streets
open to the public; and adopt community partnership in the discharge of its responsibilities under
this Act or under any other law; and vet and approve the registration of private detective schools
and private investigative outfits. See Section 4(i) Police Act, 2020.
12.2.3 Nigerian Correctional Service
The Nigerian Correctional Service (NCoS), formerly known as Nigerian Prison Service (NPS) is
a government agency of Nigeria which operates prisons. The agency is headquartered in Abuja
and it is under the supervision of the Ministry of the Interior. The name was changed from the
Nigerian Prisons Service to the Nigerian Correctional Service by President Muhammadu Buhari
on the 15th of August, 2019 after signing the Nigerian Correctional Service Act of 2019 into law.
The law divides the Correctional Service into two main areas which are The Custodial Service and
Non-custodial Service.
The Nigerian Correctional Service is an arm of the Criminal Justice System domiciled in the
Ministry of Interior. The Nigerian Correctional Service is a federal phenomenon i.e there are no
State Correctional Services in Nigeria. Every Custodial Centre is a Federal Facility. The operation
of the Service is supervised by the Ministry of Interior and the Civil Defence, Fire, Immigration
and Corrections Board.
The Nigerian Correctional Service Act, 2019 was enacted to repeal the Prisons Act Cap. P29 Laws
of the Federation of Nigeria, 2004 and to make provisions for the administration of prisons and
non-custodial measures in Nigeria and related matters.
The Correctional Service consists of Custodial and Non-Custodial Service. See Section
1(2)(a)&(b) of the Act.
The objectives of the Act are to ensure compliance with international human rights standards and
good correctional practices; provide enabling platform for implementation of non-custodial
measures; enhance the focus on corrections and promotion of reformation, rehabilitation and
reintegration of offenders and establish institutional, systemic and sustainable mechanisms to
address the high number of persons awaiting trial. Section 2(1) (a)–(b) of the Act.
The functions of the Custodial Service are: taking custody of all persons legally interned; providing
safe, secure and humane custody for inmates; conveying remand persons to and from courts in
motorized formations; identifying the existence and causes of anti-social behaviours of inmates;
conducting risk and needs assessment aimed at developing appropriate correctional treatment
methods for reformation, rehabilitation and reintegration; implementing reformation and
rehabilitation programmes to enhance the reintegration of inmates back into the society; initiating
behaviour modification in inmates through the provision of medical, psychological, spiritual and
counseling services for all offenders including violent extremists; empowering inmates through
the development of educational and vocational skills training programmes, and facilitating
incentives and income generation through Custodial Centres, farms and industries; administering
borstal and related institutions; providing support to facilitate the speedy disposal of cases of
persons awaiting trial; and performing other functions as may be required to further the general
goals of the Service. See Section 10 (a) – (k) of the Act.
Section 12(4) of the Act provides that where the Custodial Centre has exceeded its capacity, the
State Controller shall within a period not exceeding one week, notify the: Chief Judge of the State;
the Attorney-General of the State; Prerogative of Mercy Committee; State Criminal Justice
Committee; and any other relevant body. With regard to the Federal Capital Territory, the
Controller shall notify the Attorney-General of the Federation and Chief Judge of the Federal
Capital Territory; The Controller-General shall notify the Attorney-General of the Federation and
Chief Justice of Nigeria about the Correctional Centres in the country. Upon receipt of the
notification referred to in subsection(4), the notified body shall, within a period not exceeding
three months, take necessary steps to rectify the overcrowding.
See also Section 111 of ACJA on returns by the Comptroller-General of Prisons. The section
provides thus: ‘The Comptroller-General of Prisons shall make returns every 90 days to the Chief
Judge of the Federal High Court, Chief Judge of the Federal Capital Territory, the President of the
National Industrial Court, the Chief Judge of the State in which the prison is situated and to the
Attorney-General of the Federation of all persons awaiting trial held in custody in Nigerian Prisons
for a period beyond 180 days from the date of arraignment. The returns referred to in subsection
(1) of this section shall be in a prescribed form and shall include: The name of the suspect held in
custody or Awaiting Trial Persons; Passport photograph of the suspect; The date of his arraignment
or remand; The date of his admission to custody; The particulars of the offence with which he was
charged; The courts before which he was arraigned; Name of the prosecuting agency; and Any
other relevant information.
Upon receipt of such return, the recipient shall take such steps as are necessary to address the
issues raised in the return in furtherance of the objectives of the Act. See Section 111(1)-(3) ACJA.
The Correctional Service shall provide opportunities for education, training, vocational training as
well as training in modern farming techniques and animal husbandry for inmates. See Section
14(1) of the Act.
The Nigerian Non-Custodial Service is responsible for the administration of non-custodial

measures, including: community service; probation; parole; restorative justice measures; and any
other non-custodial measure assigned to the Correctional Service by a court of competent
jurisdiction. See Section 37(1) of the Act.
PART SIX: LAW REFORM AND DEVELOPMENT
CHAPTER 14
DEVELOPMENT AND FUTURE OF LAW IN NIGERIA
13.1 Meaning of Law Reform and Related Expressions
Law Reform
Law reform is the process of changing and updating laws, so that they reflect the current values
and needs of the society.
It usually involves a change or improvement in the existing law to make it more suited to the
changing needs of society.
It also extends to the introduction of completely new legislation in a legal system.
Law reform is an ongoing process which continues in perpetuity, because it is a process that
involves responding to changes in the society and adapting current laws to an ever changing
situation.
Changes that necessitate consistent reform of laws include changing social norms and values,
changing ethics and standards of behaviours, changing morality, and changes resulting from
technological advancements, significant and catastrophic events such as Terrorism.
Legalisation of gay marriage or prostitution in some societies and their criminalization in others
is an example of law reform brought about by changes in values and morality.
Cyber regulatory and criminal laws, Terrorism prevention laws and Proceeds of crime laws are
law reform responses to technological advancements and global terrorist activities.
Law Revision
The purpose of a statute law revision (in some countries described as a “reprint”) is to prepare
and provide for public use an up-to-date set of the statutes in force in a particular territory at a
particular date, incorporating all amendments and adaptations made thereto since the previous
revision and eliminating therefrom all repealed, obsolete, spent and other unnecessary
matters.
Law revision must be distinguished from the process of law reform which involves the making
of substantive legislative changes in the statute and other law of a territory with a view to its
improvement and modernization.”109
Note that Law revision is broadly regarded as part of law reform
Law Review
This involves an assessment of the existing laws in order to identify areas which are in need of
reform or revision. It is a preliminary step to law reform or law revision.
Law review may involve review of articles published by learned scholars in law journals and
other publications Law review is an aspect of law reform. It is a preliminary stage of law reform.
Law review is usually aimed at law reform. It may be conducted either as part of a particular
law reform project or separately/independently of a particular law reform project.
As part of a particular law reform exercise, law review is conducted as part of the initial
research in the particular area of the reform project. The end result in this case is to identify
defects and developments in that particular area or project of reform and make appropriate
recommendations for reform.
As a separate/independent project, law review is often conducted as a continuous exercise by a
standing law reform agency. The end result is to make recommendations on areas of the law
requiring reform.
The sources of law review include- Legislation, Journal article, Books, Judicial decisions,
Government policies, Theses /dissertations, Academic / conference papers
Consolidation
It is the combination of a number of independent enactments into a single statute. Bringing
109
H.H. Marshall, “Law Reform and Law Revision in the Commonwealth” in proceedings and Papers of the sixth
Commonwealth Law Conference, Lagos, Nigeria. 17 -23 August, 1980, 191
separate laws together (on same subject).
This new Act replaces all other different enactments on the same topic which have been passed
over a period of years. For example a codification process would include the merging of all
different enactments on road usage such as laws on Road Usage by Pedestrians, Law of Road
Usage by Motorist 2009, Laws of Road Usage by Physically Challenged Persons 2011, Tankers
and Trailers Road Usage Act 2015 into a single Act called Road Usage Act 2017 which will
include all these different Laws on Road Usage into a consolidated Road Usage Act 2017.
Consolidation does not just include the merging of Laws but the restructuring of the words of
the Law.
The major aim of consolidation is to make a statute shorter, clearer and more accessible.
Codification
This is when the entire law on a particular subject matter is extracted from different areas of
law such as common law, equity, judicial decision, executive policies and orders, statutes and
reduced or condensed into a single Act (code). Eg. Occupiers Liability Act 1957, Criminal Code
Act, Companies and Allied Matters Act.
It involves the rearrangement of previous statutes, cases laws, principles and policies that exist
on a subject matter and constituting them into a whole and complete source that is relied on
for legal enquiry in that matter.
Codification of Laws helps to bring greater simplicity and certainty to the Law.
Difference between Codification and Consolidation
The difference between Codification and consolidation in that while codification is the
reduction of different sources of a particular subject or area of law into one Act, consolidation
is the reduction of different enactments on the same subject or area of law into one Act
(enactment).
13.2 Responsibility for Law Reform (Who can undertake Law Reform)
A reform project can be undertaken by the following:
The legislature
This can be achieved through a standing or ad hoc Committee of the legislature or a special
Committee made up of non legislators.
Note that the 8th HOR had set up a law reform Committee at its inception to advise the House
and propose Bill on areas of reform.
The executive
This can also be by ad hoc Committees or permanent and specialized Commission. Both
methods apply in Nigeria.
The Nigerian Law Reform Commission is the institution of the Executive that is primarily vested
with the responsibility for law reform.
The Commission was established by section 1(1) of the NLRC Act.
Its mandate is provided for in section 5 (1) of the Law Reform Commission Act as follows:
“Subject to the following provisions of this section, it shall be the duty of the commission
generally to take and keep under review all Federal Laws with a view to their systematic and
progressive development and reform in consonance with the prevailing norms of the Nigerian
Society including, in particular, the codification of such laws, the elimination of anomalies, the
repeal of obsolete, spent and unnecessary enactments, the reduction in of procedural laws in
consonance with, changes in the machinery of the administration of justice and generally the
simplification and modernization of the law”.
Section 5 (2) of the Act further provides that the Commission shall receive and discuss law
reform proposals referred to it by the Attorney-General, and it may, on its own initiative
prepare and submit law reform proposals to him. It may, at the request of the Attorney-General
under-take programmes of consolidation and statute revision. It may also, at the instance of the
Federal Government provide advice and information to Federal Government Departments and
other bodies, on amendment of any branch of the law.
By section 7, the Commission is empowered to consider proposals for reform of state laws from
any state, group of states or all the states in the Federation and submit reports thereon to the
Attorney-General or Attorneys-General of the State/States. The Commission may also, on its
own, put forward proposals for the reform of state laws to the appropriate state Attorney-
General.
It can be seen from this, that the Commission has enormous statutory duties with respect to
Nigerian laws. It acts as a custodian of the laws-to reform them, keep them current, remove
obsolete laws, simplify existing laws, modernize them, revise and codify them when necessary.
All these can be done either by the Attorney-General making a referral to the Commission or
the Commission on its own can initiate reform proposals.
Note that the advantages of using a standing Law Reform Agency include expertise,
independence, and continuity.110
Expertise
Over the years, the staff of such institutions acquire expertise in different branches of the law,
keep abreast of developments in the law and can easily identify areas of the law which are in
need of reform, and through extensive research identify defects and keep the law in continued
consonance with the needs of the society.
Independence
The independence status of the commission from the government and other establishment also
ensures unbiased recommendations, in the best interest of the society.
Independence is not absolute because-
(a) Commissioners are appointed by government;
110
Prof. C.O. Okonkwo, SAN, OON. The Imperatives of Law Reform in the Law Make Process-article published in
Nigeria Law Reform Journal, 2012 at 1-21
(b) Work programme is agreed with government;
(c) Reports sent to government through AGF.
Continuity
As a standing body of experts.
The Judiciary
Apart from the court decisions which, subject to the doctrine of judicial precedent /stares
decisis constitutes law reform, the judiciary can also engage in law reform through ad hoc
committees or judicial institutions such as the National Judicial Institute. Note their
contribution to the reform on sentencing guidelines.
Private interest groups
Private interest groups like non-governmental organisations (NGOs) may initiate law reform
projects and sponsor a private member Bill through a member of the parliament. They may also
collaborate with government law reform institutions like the Nigerian Law Reform Commission
for law reform projects.
13.3 Stages of Law Reform (Procedure for Law Reform)
The process for each law reform project may differ according to the scope of inquiry, the range
of key stakeholders, the complexity of the laws under review, the period of time allotted for the
inquiry, and the available resources for the project.
Law reform basically consists of the following stages:
1. Initiation
2. Planning
3. Preliminary Study/Research
4. Consultation with experts and stakeholders
5. Production of Law Reform Report and Recommendations
6. Drafting of the Proposed Bill (Amendment Bill)
7. Submission and Implementation of Report
Stage 1: Initiation of Law Reform Project
A reform project can be initiated by any of those with responsibility for law reform earlier
discussed- legislature, executive, judiciary or private interest groups- NGOs.
Stage 2 : Planning Stage
A law reform project need to be properly planned before execution.
Planning provides the direction for the law reform project. It is the stage by stage layout of the
processes a law reformer adopts to enable him/her achieve a successful research exercise.
Importance of Planning a Law Reform Project
Proper planning and management of a project by a law reform agency has the following
benefits:
(a) Risk avoidance. Planning helps identify and reduce risks through developing strategies to
(b) manage problems that arise during the project life cycle, such as-change in personnel or
(c) government priorities, etc.
(d) Provides a formal project structure against which progress can be evaluated, such as laying
(e) out milestones that allow both monitoring and adjustment as the need arises.
(f) Provides a mechanism for involving the widest variety of interested parties (stakeholders) in
(g) the project.
(h) Helps in developing a budget and timetable which enables the commitment of resources at
appropriate points in the project..
Stage 3: Preliminary Research
Research is an important component of the process of law reform. It is an essential preliminary
to all other components.
The nature and quality of research to be undertaken however, depends on several factors.
These factors include:
(a) The subject matter of the project;

(b) The time allowed for completion of the project;
(c) The availability of research materials and facilities.
There are three categories/types of research:
(a) Analytical – This is concerned with what the law is

(b) Historical – This is concerned with history and evolution of the law
(c) Comparative- This deals with comparative position in other countries.
The amount of time and energy to be divided between these depend on the nature of the
subject and the status and quality of available official, academic and other materials and the
budget for the research.
Mode of Research
This may include-
(a) Law Reviews

(b) Questionnaires
(c) Interviews
Stage 4: Consultation with Experts and Stakeholders
The contributions of stakeholders in a law reform exercise cannot be underestimated.
Therefore, during a law reform exercise, the Law Reformer consults with and where necessary
engages the services of experts in the field of reform and other stakeholders for contributions
to the reform exercise. This can be done on individual basis or through pubic memoranda.
Experts and stakeholders could be pulled from government departments and agencies, Legal
practitioners, Court, Industry groups, Non-governmental organizations, special interest groups,
lecturers, authors and any other person who has expertise and experience in the laws under
reform, as well as people who are likely to be affected by the law in question.
Stage 5: Preparation/Production of Law Reform Reports/Recommendations
Preparation of the reform report is essential in articulating the position of the reformer for
implementation purpose.
There are different stages of preparation of report but the final report contains the
recommendations of the reformer which is made either to the Executive or Legislation
depending on the applicable laws in each jurisdiction.
Stage 6: Drafting of Proposed Bill
A law reform report often includes a recommendation for enactment of a law or amendment of
an existing law.
Where such recommendation has been made, the report may be accompanied with a draft Bill,
Drafting a Bill requires certain expertise. It may therefore be necessary to engage drafts
persons where the law reformers do not possess such expertise.
Where the Bill is an amendment Bill, it is a good practice to highlight the additions or new
provisions that have been introduced in the draft.
Stage 7: Submission and Implementation of Report to the Authorities
This is the final stage of a law reform process and the process depends on the laws of each
jurisdiction.
In some jurisdictions, law reform reports are submitted to the legislature for enactment. In
others, it is submitted to the executive (through the Attorney-General) for onward submission
as executive Bill. This is the case with most commonwealth countries.
The submission of the report to the relevant authorities marks the end of the project for the
law reform institution while the actual enactment of the proposed Bill into law marks the end
of the law reform itself.
Most law reform recommendations, for several reasons, do not end up in the statute books,
meaning they are not enacted into law. These reasons may include government priorities, delay
and failure in transmission by the executive to the legislative, politics etc.
This is one of the major challenges of law reform in the commonwealth and in Nigeria in
particular.
Procedure followed by the Nigerian Law Reform Commission
The procedure adopted by the Nigerian Law Reform Commission is similar to what has been
described here. The Commission usually begins its law reform process by making a proposal for
Law reform to government based on planning.
When such proposal is approved and budgeted, the Commission commences the process of the
reform by initial research and consultations (with experts and key stakeholders to identify
reform issues in the relevant area/defects in the particular law to be reformed). Issues/defects
are articulated in a preliminary/discussion paper.
Depending on available resources, the general public may be invited to submit memoranda.
The submissions are reviewed, discussed by the Commission and harmonized with the
discussion paper to produce a working paper which will contain proposals/recommendations of
the Commission.
The working paper is distributed to relevant stakeholders and a workshop is held to obtain their
evaluation of and inputs to the recommendations of the Commission.
The workshop input (as contained in the workshop communiqué) is discussed by the
Commission and a Final Report containing a draft Bill is produced.
The Final Report and Reform Bill are submitted to the Attorney General for review/approval by
the Executive, subsequently transmitted to the National Assembly as Executive Bill and passed
into law. This completes the circle of a law reform process for a particular law.
13.4 Challenges of Law Reform
Some of the challenges associated with law reform in Nigeria are: -
Undue delay in implementation of Law Reform Work.
By statute, the Commission is bound to submit its final report on the reform of any law to the
office of the Attorney-General of the Federation who in turn has the responsibility to present
same to the National Assembly by way of executive bill for promulgation into law. Regrettably,
many of such reports end up at the office of the Attorney-General without seeing the light of
the day. This is daunting and discouraging and seriously hampers the enthusiasm of law reform.
Some of such reform proposals that were not implemented include the proposals on
Consumer Protection Laws, Family Law, Companies and Allied Matters Act, Nigerian Investment
Promotion Commission Act, Law Relating to Rape and Other sexual offences, Criminal Justice(
Release from Custody) (Special Provision) Act, Trustee Investment Act, among others.
Inadequate Funding
Inadequate funding of law reform projects is a major constraint to the Commission. Law reform
project requires extensive research work, publicity, consultation with experts and stakeholders
from the six geo-political zones of the country.
This is moreso, because every law reform project ought to be in consonance with the socio-
economic, political, cultural and technological changes of the society.
Poor Remuneration of Staff
The staff of the Commission is poorly remunerated. A well motivated workforce has direct
positive bearing on productivity. The negative consequence of poor remuneration is the brain
drain and inability of the Commission to retain best hands for a long time.
Lack of Modern Reform Materials and Conducive Working Environment
The work of the Commission is also seriously impaired by lack of modern reform materials, well
equipped library and conducive working environment. We are in a digital age where e-library
and robust ICT facilities, operational vehicles, conducive working environment, etc are needed
to support law reform effort of the Commission.

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DRAFT

NIGERIAN LEGAL SYSTEM

COUNCIL OF LEGAL EDUCATION

NIGERIAN LAW SCHOOL

Prof. Isa Hayatu Chiroma, SAN

Course Lecturers (2022/2023 Session)

PART ONE: INTRODUCTION

CHAPTER 1-THE IDEA OF A LEGAL SYSTEM -R. SALMAN

1.2 Nature of Nigerian Legal System

1.2.1 Duality of Structure

1.2.2 Nature of Administration of Justice

1.2.3 Nature of Judicial Set-up

1.2.4 Nature of Legal Profession

1.2.5 System of Precedents

1.2.6 Military Influence

1.3 Nature and functions of law

1.4 Classification of law

1.4.1 Criminal Law and Civil Law

1.4.2 Private Law and Public Law

1.4.3 Civil Law and Common Law

1.4.4 Municipal Law and International Law

1.4.5 Substantive Law and Procedural or Adjectival Law

1.4.6 Customary Law and Non-customary Law

CHAPTER 2 - ENGLISH LAW –S.M.RILWANU

2.1 Extended English Law

2.2 Received English Law

2.2.1 Common Law

2.2.2 Doctrines of Equity

2.2.3 Statutes of General Application

2.2.4 Survey of the Applicable English Statutes in Nigerian Today

CHAPTER 3-NIGERIAN LEGISLATION -P.C.OKORIE

3.1 Meaning of Legislation

3.2 Types of Legislation

3.2.1 Statutes (Constitution, Ordinance, Act, Decree, Law, Edict)

3.2.2 Subsidiary Legislation (Rules, Regulations, Practice Directions, Orders)

3.3 Some Terminologies used in relation to Nigerian Legislation

3.3.1 Principal statute

3.3.2 Enabling statute

3.3.3 Amendment statutes

3.3.4 Repeal statute

3.3.5 Re-enactment statute

3.4 Nature and Purpose of Legislation

3.5 Hierarchy of Laws in Nigeria

3.6 The Authorities that enact Nigerian Legislation-

3.6.1 Under Military Administration

3.6.2 Under civilian administration

3.7.1 Long Title

3.7.2 Short Title

3.7.5 Marginal/ Side Note

3.8 Canons of Interpretation of a Statute

3.8.1 Literal Rule

3.8.2 Golden Rule

3.8.3 Mischief Rule

3.8.4 Ejusdem Generis Rule

3.8.5 Purposive Approach

CHAPTER 4 - CUSTOMARY LAW -P.C.OKORIE

4.1 Meaning of Customary Law