Criminal procedure

Firstly the word criminal is related to crime, and a crime is any act or omission which is
expressly deemed or stated to be a crime and with such an infraction or infringement
attracting punishment. Section 2 of the criminal code defines an offence to mean any act
or omission which renders the person doing the act or making the omission liable to
punishment under this code or any other act of law. Procedure on the other hand means a
specified modus operandi, a method or the rules or regulations governing certain
processes. Criminal procedure therefore is the method laid down by law for bringing a
person who is charged with a crime before a court for trial.
Classification of crimes.
1) indictable and non indictable offences
2) felonies, misdemeanours and simple offences
This classification is only relevant for the Southern part of Nigeria, indictable offences for
instance,are offences which on conviction may be punished by a term of incarceration or
imprisonment exceeding 2 years or which on conviction may be punished by imposition of
a fine exceeding #400. Any other offences not under this respect are non-indictable
offences.
Note: the essence of this classification lies in the rationale behind the power to arrest
without warrant, and while indictable offences are tried by information, non-indictable
offences could be tried summarily.
Felony: is any offence which is declared by law to be a felony or is punishable without proof
of previous conviction, with death or with an imprisonment term of three years or more.
Misdemeanour: these are offences which are declared by law to be misdemeanors and are
punishable by imprisonment of not less than six months and not exceeding 3 years.
Any other offences other than this are simple offences.
Sources of criminal procedure.
The major source of the criminal procedure in Nigeria is the Administration of criminal
justice act as enacted in 2015, which abolished the old criminal procedure act and criminal
procedure code. Other sources include the 1999 constitution especially chapter IV & Vii,
the various acts establishing courts of the country and other crime-creating statutes for
example the police act, the child's right act, violence against person prohibition act etc.
Courts of criminal jurisdiction
Essentially, all courts are courts of criminal jurisdiction, whether in its original or appellate
respects. This includes the supreme, appeal,high, magistrate and area courts. not excluding
juvenile courts, court martials, tribunals and the coroner's court.etc
Institution of criminal proceedings
Criminal proceedings could be procured by the following persons;
1) the attorney general: by virtue of section 104(1) of the ACJA, the attorney general of the
federation may prefer information in any court in respect of an offence created by an act of
the national assembly. Also section 174(1) and section 211(1) of the CFRN entitles the AG
with the power to institute or undertake any criminal proceedings against any person
before any court of law in Nigeria, other than a court martial... in the notorious decision of
Ezomo v AG Bendel state, it was held by the court that the power of the AG to institute or
withdraw any criminal proceedings in the interest of justice and to avoid abuse of legal
processes, is not subject to any authority including the courts.
Under this heading, officers in the ministry of justice can as well bring an action in criminal
respect.
2) the police: by virtue of section 23 and 66(1) of the police act, a police officer may
conduct the prosecution of an accused in a magistrate court whether or not the complaint
is made on his name. However section 66(2) of the Police act, provides that a police officer
may prosecute a criminal proceedings in a high court,provided he is a legal practitioner.
3) private Persons: by way of direct criminal complaints. By virtue of section 115(1)a of
ACJA, a person who believes from a reasonable or probable cause that an offence has
been committed by another person whose appearance a Magistrate has power to compel
,may make a complaint of the commission of the offence to a Magistrate who shall
consider the allegations of the complainant and may, issue a warrant or summons to
compel the defendant to appear in the magistrate court.
4) private prosecutors; this includes officers of commissions such as the National civil
defence corps, economic financial crime commission, federal character commission.etc Eg
by virtue of section 14(3)(b) of the federal character commission act, heads of ministries
may be prosecuted by the federal character commission where they are found guilty of
suppressing the principles of Nigerian federal character.
Methods of instituting criminal proceedings
By virtue of section 109 of the ACJA, a criminal proceedings may be instituted;
(a) in a Magistrates court, by a charge or a complaint whether or not on oath.
b) upon receiving a First Information Report;
c) by a charge prepared, filed and signed by a police officer upon believing there are
reasonable grounds to prosecute.
In the High Court,
a) by information of the Attorney-General of the federation, subject to section 104 of this
Act.
b) by information filed in the court after the defendant has been summarily committed for
perjury by a court under the provisions of this Act.
c) by information filed in the court by any other private prosecuting authority.
Difference between charges and information.
A Charge only contains the counts (that is the particulars of an offence) against a person,
but in the high court the information contains not only the counts of charges, but other
matters relevant to the prosecution.
Time bar to criminal prosecution
Generally time does not run against a criminal act, but in certain instances there are
limitations. Eg
a) in offences of treason or treasonable felonies, actions or trial must be commenced
within 2 years.
b) for sedition, it is within 6 months
c) all actions bordering on breaches of the customs and excise management act, must be
instituted within 7 years.
However, a person who is charged for the conspiracy to commit any of the crimes stated
above, even if he can't be prosecuted for the substantive offence, after the expiration of the
time bar, he can still be prosecuted for the conspiracy to commit such at any time.
Compelling an accused attendance to court
By virtue of section 113 of the ACJA, a court may issue a summons or warrant as provided
in this Act to compel the appearance before it of a suspect accused of having committed
an offence in any place,whether within or outside Nigeria, triable in a state or in the
Federal capital territory of Nigeria.
1) by summons; a court may send a person, summons, to appear before it consequent upon
a complaint laid before it, which must contain the
1) substance of the allegation,
2) the accused name
3) date of issue and
4) must be signed by magistrate or justice of peace.
It is mostly used for less grievous offences such as environmental defaults, property rates
etc.
2) by warrant of arrest; this is an instruction or authority in writing to a police officer or
any other person by the court to apprehend an offender or defaulter of the law. It is usually
issued in serious offences or where summons has been disobeyed.
However, according to the submission of Anthony onah(esq), the court ought to use a
summons to compel a person to court where he fails to appear,
this is so because:
a)the court has not assumed jurisdiction of the accused unless he is in direct default of the
court orders.
b)Secondly while a summons is issued directly to the accused, a warrant is issued to any
authority eg the police to bring the individual to court.
c)Thirdly is only when a person makes a plea that he is subject to the jurisdiction of the
court and a bench warrant could be issued.
Classes of person that may lawfully effect an arrest without warrant.
The police;
By virtue of section 18(1)of the ACJA
A police officer may without warrant in the following circumstances arrest a person:
a) whom he suspects on reasonable grounds of having committed an offence unless the law
creating such an act provides that the suspect cannot be arrested without a warrant.
b) who commits an offence in his presence
c) who obstructs a police officer while in the execution of his duty or who attempts to or
has escaped from lawful custody.
d) in whose possession anything is found which may reasonably be suspected to be a stolen
property
e) whom he suspects on reasonable grounds of being a deserter from any of the armed
forces.
f) whom he suspects on reasonable grounds of having been involved in an act committed
outside of Nigeria, which if committed in Nigeria will be a punishable offence.
g) whom he has reasonable cause to believe that a warrant of arrest has been issued against
him by a magistrate or judge or a superior police officer.
h) is required to appear by a public summons issued under this act or any other act.
Subsection (2) of the act aforesaid, provides however that a police irrespective of statutory
provisions to the contrary with respect to a warrant, may arrest a person without warrant
where such a suspect has committed in his presence an offence triable summarily, refuses
on demand of the officer to give his name and residential address or where he gives any
which the officer reasonably believes to be false.
In COP v Igwe, it was held by the court that the police officer who is obstructed in the
course of his duty has all powers to arrest even in the absence of warrant. Also in Holder v
chief constable of lacanshire, it was held that the defence of reasonable suspicion shall
avail a police officer provided he honestly acted to the best of knowledge at the material
time in which an arrest was being made.
By a private person.
By virtue of section 20 of the ACJA, a private person may arrest a suspect who in his
presence commits an indictable offence or whom he reasonably suspects of having
committed a felony or a misdemeanor at night.
Section 21 also provides that where a suspect commits an offence involving injury to
property, the owner or his authorised agents or servants may arrest without warrant,such a
suspect.
In Wright v Wilson, a person who had committed nominal act of trespass against a private
individual was arrested and detained for sometime, the trespasser thereafter sued for false
imprisonment, and failed.
Section 22 provides that a private person may arrest any suspect found damaging public
property.
Section 23 however provides that where a private person arrests a suspect, he must
forthwith handover such a person to the nearest police station and a police officer shall
make a note of the name, address and other particulars of the private person making the
arrest.
A judge or magistrate.
Section 24&26 of the ACJA provides that a judge or magistrate may arrest or order the
arrest of a person who commits an offence in his presence within the division or district to
which the judge is assigned, and shall thereafter hand him over to the police station to take
necessary action.
Search of a person.
This is always done for the purpose of eliciting or obtaining valuable evidence which may
be deployed or used in the prosecution of a criminal matter. In the course of doing this, a
male police officer can search the bag of a female but cannot search her body, for on the
basis of morality a female officer is expected to do such.
Search of premises.
By virtue of section 143 and 144 of the ACJA a police officer having satisfied the court or a
justice of peace, that there are reasonable grounds to search a premises, receptacle,
ship,motor vehicle, aircraft etc shall be issued a search warrant to do so. Otherwise a
search warrant on a premises without warrant is unlawful unless specific enactments allow
the same. In Ibrahim v COP, the act of a police officer who forcefully entered into the
premises of the appellant to effect a search and consequent eviction, was held to be illegal
and in violation of the appellants right to privacy. Also in Ezeaduka v Maduka, the court
held that no constitutional aid shall be offered to a police officer who willfully effects a
search without a warrant or without grounds of reasonable suspicion.
A search warrant is an order in written form made by a judge or magistrate for the state
directing a person, persons or premises to be looked over with the authority to seize any
property that may constitute an action for A for the commission of a crime,being given to a
police officer. In Sadau v state , it was held that illegally obtained evidence especially
during searches is absolutely admissible despite its illegality. This position of the court is
corroborated by virtue of section 14 of the evidence act.
Bail.
Bail simply means the granting of temporary release or reprieve to a suspect, pending
further trial or investigation. It is predicated on the constitutional presumption of
innocence of an accused, until proof of the contrary is obtained.
By virtue of section 161(1) of the ACJA. A person who commits a capital offence shall not be
granted bail except in exceptional circumstances. And subsection(2) provides that
exceptional circumstances are;
a) on grounds of ill health,which shall be ascertained by a qualified medical practitioner,
provided that the applicant can prove that there are no medical facilities to take care of his
illness by the authority detaining him.
b) where there is a substantial delay of investigation, prosecution or trial exceeding 1 year.
c) any other circumstances which the judge may see fit to deem exceptional.
Section 162 provides that where a person commits a felony, generally the court shall grant
bail except in the following instances;
a) where there are reasonable grounds that the applicant if released may commit another
offence.
b) the applicant may attempt to evade trial
c) the applicant may intimidate witnesses or interfere with the investigations
d) the applicant may conceal or destroy evidence
e) prejudice the proper investigation of the offence
f) jeopardize the objectives or functionings of the criminal justice administration or bail
system.
Section 163 provides that In any other circumstance other than those referred to in
sections 161 and 162 of this Act, the defendant shall be entitled to bail,unless the court
sees reasons to the contrary.
Types of bail
1) police bail;
section 27 of the police act, provides that the police may grant bail to a person where the
offence is not punishable by death and where the trial cannot expeditiously within 24 hours
be charged to the court, especially if arrested without a warrant.
2) bail pending trial; this is a temporary release of an accused pending his formal trial by
any court of competent jurisdiction. Instances where an accused may be granted bail have
been adumbrated above, under section 161,162 and 163 of the ACJA.
3) bail pending appeal; here the accused must have been convicted, making him a prisoner
and he must have appealed against his conviction and awaiting the hearing of same, and
applies for bail which is rarely granted save in exceptional circumstances which include
a) where the accused will assist in the preparation of the real case for appeal.
b) where the matter requires close consultation between an applicant and his lawyer.
c) the likelihood of the record in the compilations of the record of appeal.
d) the criminal record of the applicant especially where there exists previous conviction.
e) the character of the applicant.
Factors that influence the discretion of a court to grant bail.
1) the nature and gravity of the charge
2) the strength of evidence of the charge
3) the prevalence of the offence
4) the likelihood and extent of delay in the trial.
5) the severity of the punishment in the event of conviction
6) the criminal record of the accused
7) the risk that if released the accused may interfere witnesses or suppress the evidence
likely to incriminate him
8) the probability that the accused may not submit himself for trial
9) the likelihood of repetition of the offence.in Asari dokubo v FRN, it was held by the court
that a person's right can be curtailed in order to restrain him from committing further
offences.
 Major conditions for bail
1) self recognizance; to enjoy this, the accused must be a person of repute and eminence.
He merely undertakes to stand trial, no bond is necessary.
2) execution of a bond for a fixed sum to appear at a certain place and date.
3) the requirement to provide reliable sureties. Here a person is expected to bring persons
to stand in for him as sureties, where the accused is no where to be found, the sureties
usually pay a sum in the bond.
Charges.
A charge is a document containing the statement and particulars of offence(s) with which
an accused is charged or brought before a court for criminal trial upon his default.
The document is called a charge sheet in the north, both at magistrate and high court.
While in the south, at the magistrate court is called charge, and in the high court is called
an information.
Note: a charge must be endorsed by the name of the accused, the date of commission, his
offence, his age, sufficient description of the offence, the place of commission and the
section of the law in which it is brought under. Otherwise by virtue of section 36(12) of the
1999 constitution, such a charge is rendered nugatory and void. Because the said Section is
to the effect that no person shall be tried or convicted for an offence not defined by law
and its penalties not prescribed in any written law.
Rules for drafting charges
1) Every charge or count must be clear, precise, unambiguous and concise.
2) The rule against duplicity forbids that a count in a charge shall disclose more than one
offence except where a specific law allows for such.
Exceptions.
a) offences relating to general deficiencies of money committed over a period of time.
b) where statutory forms are adopted
Eg, by virtue of section 356(2) and 406 of the criminal code, offences defined in the
alternative can be alternatively contained in a single document.
b) where identical offences committed against several persons in a single transaction can
be stated in a single document.
3) The rule against mis-joinder of offenders forbids the joining of offenders in a cause or
matter. Thus a single offender should be charged for the offence he committed in a single
charge sheet.
Exceptions.
a) section 7,8, and 9 of the criminal code allow offenders accused of the same offence to be
tried together
b) where two persons commit different offences in the course of the same transactions.
c) where two persons respectively are accused of committing an offence and abetting the
same or being an accessory to an attempt to commit it.
Options open to an accused to plea.
1) preliminary objection; an accused or his counsel can raise a preliminary objection as to
the jurisdiction or competence of the court to try or hear the matter on any valid grounds.
Where a court tries and hears a matter, such is a nullity no matter how profound or
intelligible such verdict is. See AG Anambra v AG fed.
2) refusal to plead; an accused may refuse to plead and he will be asked why, if his reasons
are invalid a plea of not guilty is entered for him and trial commences.
3) stand mute; where an accused stands mute and his reason for doing so is immaterial, a
plea of not guilty is entered for him and trial commences, but where the standing mute
arises from insanity, he is confined and kept in custody at the governor's pleasure until he
is fit to appear again.
4) plead guilty; where an accused pleads guilty, such a plea must be recorded in the exact
wordings, if the court accepts the plea and the essentials of the charge, it could convict the
accused on the plea. This plea must be by the accused and not his counsel, after such the
law enjoins the prosecution to state the material facts as to support the charge.
5) plead not guilty; if an accused pleads not guilty, trial commences and he is cloaked of the
principle of presumption of innocence as stated by virtue of 36(5), then the onus falls on
the prosecution to prove his guilt.
6) autrefois convict; as a special plea, it is provided under section 36(9) of the 1999
constitution and it forecloses double jeopardy. Thus a person cannot be punished twice for
one and the same cause. if this is discharged the court discharges the accused, but
otherwise he is mandated to plead to the charge for trial to commence.
The elements of this special plea is that;
a) an accused had been previously tried on the same criminal charge.
b) trial then was before a competent court and
c) trial ended then as a result of an acquittal or conviction, excluding nolle prosequi
Prosecution and the public..
Criminal trials are to be done in an open door mode for all persons who wish to listen,
except in the following instances.
1) on grounds of public policy, decency of expediency such as where there are no more
seats
2) where an evidence of a person in relation to offence against morality is to be heard
3) where a statute expressly requires exclusion or
4) upon privilege.
Course of actual trial
Though trial does commence by prosecution making an open address, it is by adducing
evidence and calling witnesses that trial usually begins. No amount of witness is required, it
is the weight of the testimony that is important. Usually when a witness is testifying, others
go outside, where any chooses to stay, his claims won't be disputed but it reduces the
probative value of his testimony. The witnesses must then be sworn on oath to speak the
truth, any who refuses may be confined until repentance, the presenting of evidence of the
witness follows a consistent course, examination in chief first, then cross examination by
the defence counsel and re-examination if need be. The court can put questions to
witnesses where necessary.
No case submission
If where the prosecution finishes and the defence feels it has no case to answer, he can
enter a no case submission. Which is predicated on the following
1) that no essential element of the alleged offence has been proved
2) that the adduced evidence of the prosecution has been discredited by the effect of the
cross examination, and has become manifestly unreliable.
Final address
This is the articulation by counsel of the facts with the law, drawing inferences therefrom
and making a submission to the court to see it in the party's own lenses or from its
viewpoint. Note: it must be made orally and not in a written form.
Constitutional safeguards for fair trial.
1) right to information of crime committed. As provided by section 36(6)(a) see COP V obolo
2) right to time and adequate facilities to prepare for trial, as provided by section 36(6)(b).
In State v Iweke, the supreme court noted that word " facilities" implies any resources and
any other thing that will help a party in defence of an offence for which he is charged with.
3) right to counsel as provided by section 36(6)(c). In COP v Uzodinma, an edict of an area
court was held to be null and void as it prevented the appearance of a counsel in court of
law. Also in Udofia v state, it was held that the court will not allow an accused
unrepresented in every stage of the trial where he lacks the financial means to get a
counsel.
4) examination of prosecution (cross examination). As provided by section 36(6)(d),The
supreme court in Tulu v Bauchi NA, raised this right to a level of sacrosanctity. According
to the court in Matthew v state, it is relevant for the provision of cross-examination as a
great tool in the hands of an accused or his counsel, to sift out possibly grey areas of
inconsistencies or exaggerations of his opponents.
5) right to interpretation of proceedings. As provided by section 36(6)(e).and it is a right
that is given to a person subject to no condition of payment.
6) right to fair hearing/natural justice. This is the twin maxim of Audi alteram partem and
Nemo iudex in causa sua
Audi alteram partem ; this entails that the other party in a trial must be held, otherwise he
has been denied his right to fair hearing. Eg in Guri v hadejia native authority, a particular
law of the Maliki law school debarred a person from testifying in his own defence, the court
held such a custom to be repugnant as it contravened the person's right to fair hearing.
Also in Adekunle v university of portharcourt, the plaintiff appellant were unlawfully
dismissed by the defendant on the bases of some allegations without proper hearing, the
court held that their right to fair hearing was not complied with.
Also in Sule V FCDA, the court held in favour of the appellant, who sued against the
company for lack of fair hearing in the investigation process that recommended his
dismissal.
Also in FCSC v Laoye, the supreme court frowned at persons acting in judicial and quasi
judicial capacities for their failure in not hearing the other side, thereby denying them their
rights to fair hearing.
Nemo iudex in sua causa; this entails that a person cannot be a judge in his own case. Eg
in Lawson v native authority Aba, the plaintiff was tried for non payment of tax by an
administrative officer who was responsible for tax collection, he was again tried by the
same administrative officer in his different capacity as a magistrate for the same offence.
The court of appeal held that the principles of fair hearing were not complied with.
7) presumption of innocence, as provided under section 36(5) in Bozin v state, Oputa JSC as
he then was held that suspicion no matter how grave does not amount to proof. Thus the
prosecution must prove his case beyond reasonable doubt before a person is convicted.
This is so because in Wilmington v DPP, it was held that it is better for 9 guilty persons to
escape the law than for one innocent person to be punished.
8) offence must be known to law.
Section 36(12) provides that no person shall be tried or convicted for an offence which is
not defined and penalty prescribed in any written law. And a written law refers to any act
or law made by the relevant parliament.
9) right to silence. By virtue of section 36(11) of CFRN An accused person must not be
forced to give evidence at trial. And his failure to speak can only be commented on by the
judge and not the prosecution. In State v chauvin, the accused,on grounds of fear of
incrimination refused to give evidence at trial.
10) one trial for one offence. This forecloses double jeopardy. As provided under section
36(9). See Fitter v veal. However is relevant to note as highlighted by the court in AG
Kaduna state v Mallam Usman, that an entry of nolle prosequi is only a discharge and does
not amount to acquittal. thus a person cannot rely on the doctrine of double jeopardy if his
case is revisited on reasonable grounds.
11) publicity of trial. As provided in section 36(4) of the CFRN. According to the court in
Recrooks, this is to ensure that Justice is manifestly seen to be done.
Judgement
This ends the criminal trials as it is the final resolution of the dispute or controversy and
determines the rights and obligations of the parties thereto. Every judgement must contain
the facts of the matter, the issues involved, laws applicable and must show that the right
inferences are drawn and a current finding of conviction or acquittal based on credible
evidence before the court.
Judgement must be made in writing and not orally and must contain the ratio decidendi
thereof, failure to give reasons for decision is fatal. Recently in Onyeachimba v State, the
incidence of a bad judgement was seen, the judge wrote word for word the records,
reproduced counsels address verbatim. It was accordingly held null and void.
Section 294(1) of the 1999 constitution provides that every judgement shall be delivered
within 3 months and the constitutional duration of 3 months then recommences from such
latter date of re-addressing. However noncompliance without any substantial injustice
does not vitiate a criminal trial.
Allocutus
It is a court's inquiry of an accused person as to whether he has any legal cause to show
why judgement should not be pronounced against him on a verdict of guilty. It is more like
a mitigative plea asking the court to tamper justice with mercy on any reasonable ground.
The omission to ask for allocutus however does not vitiate a criminal trial.
Sentence/punishment
This must be done in an open court. Where the law recommends maximum sentence the
judge cannot exceed it and where the law recommends minimum sentence, the judge
cannot go below it. Prosecution cannot appeal against a sentence that it was too small, but
an accused may appeal. However it is rather to appeal against the judgement itself and not
the sentence.
Types of punishment
1) death sentence; this is compulsory for all capital offences, and confirmation must come
from the president before execution. The following cannot be executed.
a) a person under the age of 17 as at the date of commission.
b) a pregnant woman. Instead a sentence of life imprisonment is given.
2) imprisonment: this may be with or without hard labour. Where a sentencing takes note
of time spent while awaiting trial. It is custodious. Sentence can also be concurrent, that is
where an accused commits several offences and he is made to serve for the longest term
only.
Other forms of sentencing include, fines, prohibition order, caning, lashing, haddi,
conditional discharge,deportation, binding over and restitution. Etc

Civil procedure in Nigeria.

This aspect of law falls under the adjectival classification of law, and it aims at ensuring
expeditious adjudication of cases in action.
Sources of Nigerian civil procedure.
1) Rules of the various courts we have in Nigeria constitute a primary source of civil
procedure in Nigeria. The supreme court rule made in 1985 for instance regulates the
practise and procedure in Nigeria's apex court.
The court of appeal rules made under section 227 of 1979 constitution make up the
procedures for court of appeal, and the various high courts all have their respective civil
procedures rules as made by the chief judge of the state or the federal high court. Eg
federal capital Territory civil procedure rules.
We Also have magistrate and district court rules at the state level.
Note: resort to English law practise and procedure in cases where the local rules do not
provide for a circumstance, has been jettisoned. Presently, where the rules do not provide
for a particular procedure, the court is enjoined to apply such rule as will ensure
substantial justice.
2) statutes creating courts are also veritable sources of civil procedure in Nigeria. They
usually prevail over rules of courts in the event of conflict.
( This includes the sheriff and civil process act, the judgement enforcement rules and the
"foreign judgement reciprocal enforcement act", the companies and allied matters act,
company winding up rules, matrimonial causes act and rules for practise and procedure in
matrimonial matters.)
3) the constitution is also a source of procedural rules in that it serves as an enabling law,
for instance the fundamental human rights enforcement procedure rules of 1979 and the
fair hearing provisions of the constitution in section 36.
4) judicial precedents also serve as a source.
5) practise directions issued from time to time, specifying the way and manner rules of
court are complied with constitute a source. However where there is conflict between
practise directions and rules of courts, the latter will normally prevail.
Preliminary considerations in civil proceedings.
Jurisdiction: in Nokoprise international ltd v Dolbest trading corp. Was defined as
a)that authority which a court has by a power to do justice in a cause of complaint made
before it.
b) the limits which are imposed upon the power of a validly constituted court to hear and
determine issues between persons seeking to avail themselves of its process by reference to
i) the subject matter of the issue
ii) the person between whom the issue is joined
iii) the kind of relief sought
c) the way in which the court will exercise the power to hear and determine the issues which
fall within its jurisdiction or as to circumstances in which it will grant a particular kind of
relief which it has jurisdiction to grant, including its settled practise to refuse to exercise
powers or to grant such reliefs in particular circumstances.
Note: according to the court in Madukolo v Nkemdilim, a court has jurisdiction when is
properly constituted as to number and qualification, the subject matter is within its
jurisdiction and there's no feature which bars it from exercing it's jurisdiction, and the case
comes before the court initiated by due process of law and upon fulfillment of any
condition precedent.
Note: where there is a defect in jurisdiction any ruling is a nullity. See AG Anambra v AG
federation.
Challenges or objections to jurisdiction can be raised at any stage of the proceedings even
for the first time on appeal, and it could be on the following factors.
1) non-fufillment of any condition precedent. Eg in Sun insurance co v Adegoroye, it was
held by the court that an insured person must first as a condition precedent, sue the injurer
before including the insurer before he can get relief sought under an insurance contract.
2) presence of ouster clause, Eg the court in Ademolekun v university of Ibadan council,
held that the implication of Decree No 1 1966, ousted the jurisdiction of the court as no
matter could be entertained by the court as to the validity of any decree made in the
country.
3) non-service of any appropriate court processes.
4) lack of juristic personality, in Gani fawehinmi v NBA, it was held that unless an
institution has legal standing, then it could neither sue nor be sued.
5) limitation of action or statute bar. Eg section 50 of the criminal code act provides that
any action for sedition against any person must be brought within six months.
6) lack of quorum, Eg section 234 of the 1999 constitution provides that the supreme court
shall in constitutional matters or in the exercise of its original jurisdiction sit at least of
seven justices. Thus failure to comply alters the jurisdiction.
7) absence of territorial jurisdiction, as seen in people v Jackson
8) lack of locus standi, according to the court in Gani fawehinmi v the president, locus
standi refers to the legal grounds and capacity to sue, thus where it is lacking the court
may have no say.
9) suit before a wrong court. Eg in Marguis of waterford v Knight, a person was directed to
relitigate in the common law court after 14 years of time wasting and expensive litigation in
the court of equity which was the wrong court.
10) failure to comply with a pre-action notice. Eg the Nigerian national petroleum
corporation act 2004, provides that before any action may be filed against the
establishment, a preaction notice must be filed.
11) Abuse of court processes.
Parties to an action.
1) proper parties; those who though are not interested in the plaintiff's claim are made
parties or joined in suit for good reasons.
2) desirable parties; those who have an interest or who may be affected by the suit's
outcome
3) Necessary parties; those who are not only interested in the suit subject matter but in
whose absence, the proceedings cannot fairly be dealt with.
Representative action.
In this type of actions, one or more plaintiff's institute civil proceedings against one or
more defendants for themselves and on behalf of other persons. Eg in Amos v Shell BP, a
representative action was brought by the plaintiff against the oil company seeking relief
and injunction against the company restraining them from commiting acts of nuisance
against the community.
Also in Hill v metropolitan asylum District board, a representative action was brought by
the plaintiff for the community against the small pox hospital which was positioned in a
sensitive residential area thereby amounting to nuisance.
Representative actions obey the following.
1) those represented do have a common interest and common grievance..
2) the relief sought benefits all those represented
3) the parties being represented consent or authorized those representing them.
Consent here is critical, thus In CN ekwuogor v Asco investment ltd, it was held that an
agent or donee of a power of attorney who is suing must as well provide that he is suing
either in the name of his principal or the donor.
In Agbo v Ugwu, an action brought in a land dispute in representative capacity was held to
be invalid as the consent of the family in question was not obtained.
In conclusion, the verdict of the court always bind all parties to the dispute.
This type of suit is usually commenced by motion exparte for leave to bring the action in
representative capacity, however actions by executors, donees or powers of attorneys,
which is another form of representative action, do not require leave and must be endorsed
on the writ.
Joinder.
all persons with common or joint interest in the subject matter is usually fused as
co-plaintiffs. This is actually to avoid multiplicity of suits where the facts, witnesses, points
and applicable laws are similar for diverse parties. Same applies to defendants. After all
there must be an end to litigation.
Non-joinder.
This is the omission to join parties whose participation is absolutely necessary for a proper
determination and appraisal of the case, any of the parties may apply for joinder here, and
he must have an interest in the suit.
And it is relevant to note that a suit cannot be decided with finality, Joinder does not
operate retrospectively as it begins the day the court so orders. A court may suo Motu join
anybody.
Mis-joinder.
This is when a plaintiff or defendant is wrongfully joined in a suit or relief or lacks capacity
to sue and be sued. Here an order striking out by the court cures any anomaly as no cause
or matter shall be defeated on grounds of mis-joinder or non-joinder.
Note: in a mis-joinder a person sues a wrong party, which will lead to the court striking out
the case, but Misnorma, is merely the wrong citation of the name of the parties, which will
not lead to the matter being stricken out.
Death.
In tort, the death of a party or either party to the action brings the suit to an end. This is in
line with the maxim, Actio personalis moritur cum persona" which means a personal
action dies with the person. in Makol v Chairman Ghanga ram hospital. The claimant sued
that his son died due to the negligence of the defendant surgeon, thereafter in the course of
proceedings, the defendant surgeon died, the court held that the tort was terminated by the
demise of the defendant.
However this rule does not apply where it involves an action in contract or any unjust
enrichment of a tortfeasor's estate. In Shadwell v Shadwell, the court held that a man was
entitled to recover debts from an estate belonging to his deceased uncle who was the original
personal debtor.
This position of the court is corroborated by section 1(1) of the miscellaneous provisions
act of 1934, which provides that an action may still survive and be subsisting for the benefit
or default of a person's estate.
However this exception does not apply to an action involving defamation or a claim for
bereavement of damages, contract to marry, enticement and habouring etc being actions
that are strictly of personal nature.
Commencement of action in magistrate court.
Suits are initiated here by two means;
1) by plaint and by
2) originating application
venue for commencement of a civil action must be either where
1) the defendant resides or carries out business
2) the cause of action arose wholly or in part
3) in cases of assignment, where the assignment was entered into
4) the subject matter of an originating application is situated
5) there is no respondent to an application and the applicant resides within that state.
A plaint: this is an application for summons instituted by the plaintiff against a defendant,
in the magistrate court by supplying relevant information as required to be given to the
magistrate court registrar upon payment of proper fees by an intending plaintiff.
It usually contains;
1) the claims and particulars of a claim
2) it enables the defendant to know the specific case against him,
3) it as well invites the defendant to come state his own side of the story.
A variant of this summons is "default summons"
Which is issued against a defendant in "debt or liquidated money demand" which is any
definite or specific claim of amount that is fixed and agreed upon, and is capable of being
mathematically computed, and has no defence to the claim.
The life span of summons, ordinary or default is 12 months though it can be renewed for six
months, before or after its expiration.
Service of summons is always personal unless the defendant may be stubborn to appear
then the court may use its hand to do so. It could be by advertisement in newspapers,
pasting it on the defendant's abode or at the court premises.
Originating application: this is usually by motion supported with an affidavit, and
according to the supreme court in Akunnia v AG Anambra, it applies only where a statute
specifically provides, in commencing a particular kind of action. An originating application
must state the order applied for and sufficient particulars showing grounds for the
application.
Commencement of action in a high court.
Venue for commencement:
The choice to commence an action in a high court is dictated by the law and the type of
transgression or wrong a party is aggrieved for. Eg.
1)Regarding contracts and breaches; an action must be commenced where the defendant
resides or where the contract ought to have been performed or where the contract was
entered into.
2)Regarding torts; the proper place for commencement is either where the defendant
resides or where the cause of action arose. The Supreme court in Mosojo v Oyetayo, stated
that a cause of action arises on the date of occurrence,neglect or default complained off
and not the consequences of any of the above.
Also the court defined cause of action as those facts when proved will entitle a plaintiff to a
remedy against a defendant.
3)Regarding negligence leading to collision, the place where the collision occurred is
appropriate. However where a cause of action arose in two separate judicial divisions, any
is applicable.
4)Regarding action founded on an act, omission, or default occurred, the case shall be
brought where any of the above three mentioned occured.
5)Regarding an injunction or declaration against a statutory body, where the body resides
will be appropriate.
6)Regarding land matters; the lex sixtus is okay. As was held in R v ilorin ex parte aremu.
It can therefore be concluded that the jurisdiction of the court except in land matters is always
predicated on the person of the defendant.
Modes of commencement of action.
1) writ of summons: this is mostly used in commencing suits that are contentious in nature,
because during trials all parties must testify and adduce evidence as to what transpired. In
Fact it is the most important mode of instituting an action, and is apt for any species of
action except where the constitution provides otherwise..
It is usually employed where there is dispute of facts between 2 parties and such an action
is one that could have been originally commenced in the old king's bench court. As a result
all actions predicated on common law must be commenced through the writ of summons.
Eg in Yusuf v Nigerian tobacco company, the plaintiff took out writ of summons against the
defendant employer over the dispute as to whether the document stating goods be carried
at half penny at 1lb per mile instead of the usual half penny at 100lb per mile, should be
binding, the court however resolved the dispute by Suo motu raising the principle of
unilateral mistake.
Also in Honourable Dennis v chief Brendan & ors, the plaintiff as well took out a writ of
summons alleging defamation in a contentious dispute as to whether he really
misappropriated funds or not as alleged by the defendant.
this mode may be used for actions in claims founded on?
1)torts,as seen Ajagu v union bank
2) contract as seen in yusuf v Nigerian tobacco company.
3) fraud as seen in UAC v saka
4) claim for damages, as seen in Kashim v Okafor
5) breach of duty. Idiagbonya v Dumez Ng ltd
6) declaration of property as seen in Tapa v kukah
7) order of injunction, as seen in Badejo v Ministry of education etc.
A writ of summons must contain;
a statement of claim: which by virtue of order 3 rule 2(1) of the Lagos state high court civil
procedure rules, must be accompanied by several documents such as;
i)list of witnesses by the plaintiff
ii)) written depositions of the witnesses to be relied upon and
iii) list and copies of all documents relied upon by the plaintiff in proof of his case.
2) originating summons: this mode of commencement is always applicable where the issue
before the court is one of the construction or interpretation of the constitution, any will,
deed or instrument, where there may be no apparent dispute as to the fact and
circumstances of the action. As seen in PDP V Buhari. Where it was held by the election
tribunal that the military certification received by Buhari satisfied the "equivalence clause"
of section 131(d) of 1999 constitution.
Also in Olubukola v Rebold industries,
The dispute before the court was for the interpretation of section 16 of the legal
practitioners act. According to the court, the duty to pay a lawyer for services done can
only be imposed upon the original clients and no other person. And as also seen in
Apatira v akenke, an issue bothering on the interpretation of the wills act with respect to
defects in drafting a will vis-a-vis inheritance, the court held that the mere defect in a will
does not invalidate it.
Also in Oke&anor v Oke&anor, the court held that in line with section 3(1) of the wills law of
the old Bendel state, a person who choses to bequeath his property must do so in the light
of customary right of testamentary capacity. And lastly this mode of commencement must
be used where a statute expressly allows for it.
3) originating motion: the use of this mode must also be directed expressly by a statute,e.g.
the enforcement of fundamental rights breaches or violations as stipulated by section 46 of
the 1999 constitution. Which provides that where a person feels his right is,has been, or is
in danger of being violated, he may proceed to the high court in the state and seek redress.
Thus in Amakiri v Iwowari, by an originating motion in declaration of the fundamental
rights of the plaintiff journalist, the court held that he was entitled to damages as his right
to dignity of human person was wantonly attacked and violated. Also a look at various high
court civil procedure rules depicts the prescription of this mode with respect to actions or
declarations of
a) mandamus as seen in Director SSS v Agbakogba, where the court ordered the
defendants to release the passport of the plaintiff as it impeded his right to freedom of
movement.
b) certiorari as seen in Lakanmi v AG west. Where an order was sought to quash the
proclamation of the chairman of the public property tribunal of enquiry, on grounds of
being illegal.
c) habeas corpus as seen in Agbaje v COP, where the court ordered that the plaintiff be
released from detention and brought before the court for the determination of his case.
d) and injunction as seen in Shugaba v ministry of internal affairs, where the court held
that because the plaintiff's grandparent was a Nigerian, automatically it made him a
Nigerian too, therefore his right of citizenship was reiterated and damages and apology
offered accordingly.
4) petitions: also a statute must permit before an action is brought in this respect too.
Actions that may be brought in this respect includes
a) election petitions. By virtue of section 133(1) of the electoral act as amended
2010,"election petitions" are used to present a legal grievance of an undue election or by
contesting that a declared candidate is not the successful winner. Eg in the notorious case
of Rotimi amaechi v Inec, the appellant in an election petition successfully debarred
omehia from continuing to rule as the governor of river state as his assumption of office
was replete with some constitutional defects according to the electoral act and the
constitution of the PDP.
b) matrimonial petitions; section 54 of the matrimonial causes act provides that an action
for the nullity and dissolution of marriage by one spouse against another must be
presented or instituted to the court by way of petition. Numerous cases have been brought
to the court in this dimension Eg. McGregor v McGregor. And that of Galloway v Galloway.
Amongst other cases.
c) application for liquidation and winding up of a company. While section 473 of the
company and allied matters act provides for the liquidation of a company.. section 408 of
the company and allied matters act provides for the winding up of a company, either on
grounds of a resolution, being in default of debt or statutory report or where the numbers
of the members reduce to 2. Rule 18(1) of the company rules provides that an action may be
brought in this sense for winding up by way of petition provided the petitioner shall file an
affidavit in support of the facts stated. Many cases have as well been brought under this
heading, eg in CBCL Ng ltd v Okoli, it was held that a company if by way of petition applies
for its winding up, it does not result totally to the death of that company, thus it still
maintains its legal personality.
Pleadings:
1)Generally These are formal allegations by the parties to a lawsuit of their respective
claims and defences.
2) Black's law dictionary 8th edition 2004, defines a pleading as a formal document in
which a party to a proceeding, especially a civil suit, sets forth or responds to allegations,
claims, defences or denials.
3)It can also mean all written statements exchanged by parties in any civil matter for the
purpose of establishing their case.
4) As a matter of fact all originating processes, which includes writ of summons, originating
motions, originating summons, or petition, statement of claims, defence, counterclaim,
rebutters. Etc are all pleadings and should be regarded as such.
Importance of pleadings
according to Akpamgbo C.O SAN. The objects of pleadings are;
1)to delimit the issues and clearly narrow the controversies between the parties.
2) to prevent surprises at trial and
3) to save cost.
And According to the court in Noibi v Fikolati, the essence of pleading is to aid the court
and the parties to know from the joinder of issues, the exact case in which the parties are
to meet in the hearing of their matter.
According to the court in Ukegbu v Ugoji, the pleading apart from delimiting issues, also
help parties in dispute to prepare effectively in order to answer to their respective claims
and allegations.
Main functions of pleadings.
1) it defines the issues in dispute and also highlights matters to which there is an
agreement between them.
2) helping each party give a fair notice to the other party of the case which he wishes to
bring to court.
3) it constitutes a permanent record of what was decided in a particular case.
4) it specifies on whom lies the burden of proof
5) it determines the approach to be taken by the defendant in order to meet the plaintiff's
case.
6) parties as well as the courts are bound by pleadings
7) it uplifts the principle of natural justice by preventing springing of surprises at trial( Audi
auteram partem) as entrenched in section 36 of the CFRN.
However every pleading as to content must contain the following;
1) material facts only and not evidence in proof, or law in support and
2) must be in summary form.
Instances where a pleading may be amended
1) to ensure substantial justice
2)where is done in good faith
3) where it settles the controversy between the parties
4) where the court raises for its amendment suo Motu
5) where it will allow for incorporation of " ex improviso" matters to bring the pleading in
line with evidence.
Instances where amendment will be refused
1) where it would cause injustice or applicant acts in bad faith
2) where it is designed to outsmart the other party
3) where is useless or inconsistent
4) where it unnecessarily necessitates the hearing of further evidence
5) where it will present a completely different cause of action.
6) where it does not cure procedural defects
In Aina v Jinadu, it was held that the court of equity will not allow a cunning and crafty
application sought to lord over an amendment sought malafide.
Also in Iweke v SCOA, it was held that an amendment designed to create further a suit that
was not in existence will not be permissible.
Statement of claim.
These are simply the averments of parties to an action. It is always in the form of a
document which contains the summarily endorsed claims and allegations of parties to a
dispute. They rank second after the commencement of civil actions, and must be filed
timeously forthwith to avoid delay of justice. The abia state civil procedural rules is a
perfect example which remedied the unnecessary delay in filing statement of claims, thus it
must be filed alongside the originating process .
Every statement of claim must have at least
1) discernible introduction
2) body of main averments
3) the reliefs or prayers sought from the court.
Note: the discernible introduction provides information as to who the plaintiff and the
defendants are, where they work and reside, as well as the circumstances which gave rise
to the issue.
Note: the body of main averments are the necessary facts which the plaintiff put forward
in elucidation of his case in order to get a remedy. In the body averments, it is necessary
that there must have been a disclosure of breach or violation of a legal right, this is in line
with the maxim "ubi jus ubi remedium" as was laid down by the court in Ashby v white.
Note: the relief and prayer sought refers to the totality of what the plaintiff wants the
court to do for him.
Generally, a statement of claim must contain all relevant facts, it must not be too brief, it
must be comprehensive and accurate and must not anticipate any defence.
However the following cannot be pleaded in a statement of claim;
1) fulfilled condition precedent
2) presumption of law and
3) facts judicially noticed.
Statement of defence
Materially, this is simply the reply of the defendant to the plaintiff's statement of claim and
writ. Before setting and filing it, he must have painstakingly looked at it to know if they
disclose any irregularity and importantly a cause of action. If there's non, a proceeding in
lieu of demurrer by way of motion might be used to sought the court to strike out the
plaintiff's pleading for non-disclosure of cause of action.
It will also verify if the proper parties to the suit are joined therein?
**whether there is any need to request for further and better particulars? Etc
** Whether there are preliminary objections based on any non-compliance to rules of
court or enactment?
Generally a statement of defence must contain
1) general traverse
2) body of the traverse and
3) relief sought
Note; the general traverse is always couched in this manner. "Save and except as herein
after or otherwise expressly admitted, the defendant denies each and every material
allegation of fact contained in the statement of claim as if the same were specifically set out
and traversed seriatim". According to the court in Ipkinobia v mobil oil co ltd, where a
statement of defence has been set and filed, it puts the plaintiff in the strictest sense of
proof of all allegations.
Note: the body of the traverse/admissions: contains the denials or admissions of the
material and specific allegations contained in the statement of claim.
Note: the relief sought usually entails an outright denial of liability to the plaintiff's claims
and for them to be dismissed with cost..
Note: a statement of defence must not be vague or evasive
Note; any specific allegation in a statement of claim not denied in the statement of defence
is said to be admitted. Etc
General principles guiding pleadings
1)any material allegation contained in the statement of claim that is not specifically
traversed expressly or by implication, is taken to be admitted
2) in Lewis & Peat ltd v Akhimien, it was held that a statement of defence must not be
evasive, vague or general but rather must answer all points of substance.
3) mere averments in pleadings are not evidence and can't be taken as so, but must be
established by cogent evidence.
4) the court in its sacrosanct duty of administering justice must restrict itself to the issues
raised in the pleadings. Esso JSC, asserted that once an issue is not placed before a judge
then he has no business with it, for he is not a knight errant looking for skirmishes all about
the place.
Ways of orchestrating a statement of defence.
1) by admission of fact
2) by denial or traverse
3) by avoidance and confession
4) by objection on a point of law
5) by set off or counterclaim for monetary reliefs. According to the court in John Holt&co v
Oldunjoye, it was held that (Set off implies mutual indebtedness, while counter-claim
implies cross actions)
Note: that a defendant cannot traverse specifically the following;
1) quantum of damages or relief
2) matters of law, legal conclusions or deduction in a statement of claim left for the trial
judge to determine.
3) particulars of substantive averments in a statement of claim.
4) matters of inducement or interlocutory matters which usually are not disputed or
controverted.
Demurrer
The procedure by way of demurrer means that a defendant while whether he admits or
denies the plaintiff's claims against him to be true, insists that those facts are insufficient to
make him the defendant defend or proffer answers or be compelled to respond or reply to
the plaintiff suit, on reasons legal or equitable, inherent or apparent, or some omissions
and non-compliance with conditions precedent to the institution of the suit.
Put more succinctly, this is more of preliminary objection without entering appearance,
hence a person need not go into the substance of the case. However recently, demurrer no
longer exists and persons must enter appearance before raising any objection.
Interlocutory application
1) ex parte or
2) on notice
Motion ex parte: this is an application taken or granted by the court to a party without the
notice of the other party.
Motion on notice: this type of application places the adverse or opposing party in the suit
on notice of the application. The other party can here now, file a counter affidavit denying
the applicants assertions and state his perspective in the issues respectively. If not the law
is clichéd that uncontradicted/unchallenged evidence is taken to be admitted facts.
Two major reliefs sought by applications
1) interim or interlocutory relief
2) orders and or injunctions.
 What a plaintiff must show to get exparte motion;
1) that he has a legal right to be protected
2) that he has an arguable case
3) that there is an urgency
4) that the balance of convenience is on his side
5) that he is not guilty of delay
6) that he undertakes to indemnify the respondent should his application fail.
Trial procedure
After all pleadings have been exchanged, issues and parties properly joined, all
interlocutory applications ruled upon,the civil matter goes to court, and it must be by
public hearing in line section 36(4) of 1999 constitution.
The stages involved.
1) examination in chief; as provided by section 188(1) of the evidence act,here the counsel
to the party who called the witness examines them, asking some series of short questions.
Here suggestive questions are disallowed once objected to by the opposing party except if
the court allows it, as provided in section 195(1) of evidence act. Essentially the skills of
counsels are tested here, on his ability to refresh the plaintiff's memory without
contravening rules.. etc
2) cross-examination: after the earlier stage, a witness is usually cross examined by the
opposing party or his counsel, if they do desire.
Cross examination if properly utilised may make available to the court, the deceit of the
witnesses, the inconsistencies in their testimonies, and exaggerations..etc cross
examination in the case of Tulu v Bauchi NA, and the case of Matthew v state, was raised
to the position of sacrosanctity in the Nigerian legal system, owing to its importance in
litigations.
After the cross-examination stage, witnesses are called by their counsels to clarify grey
areas or doubt arising from the cross-examination.
Note: after some other processes, Thereafter the plaintiff calls that he has closed his case
and The defendant takes over and opens his defence. In any of the following ways.
1) calling his own witnesses
2) resting his case on that of the plaintiff, where it appears that the submissions of the
plaintiff are favourable to him.
3) making a no case submission, that the evidence tendered by the plaintiff does not
substantiate his claims. As seen in Iyalekwu v omoregbe
Modes of executing a judgement.
1)writ of fifa; it is used only for monetary claims of judgement, it authorises the bailiff of a
court to seize and sell moveable properties of the judgement debtor, and where the court
approves the immovable property of the judgement debtor too.
2) Garnishee proceedings; here execution occurs by diverting and routing money
accruable to the judgement debtor from other sources or persons to the judgement
creditor.
3) writ of sequestration or confiscation; this order appoints persons to enter all the
immovable properties of the debtor, collects rents and profit therefrom and take
possession of all his movable properties until he complies with judgement.
4) order of possession; this is used in a land matter by the victorious party to take
possession of the Res( subject matter) or land.
5) Order of delivery: here the judgement debtor is mandated to deliver goods specified
therein, on or before a named date to the judgement creditor.

The judiciary, functions and classification of courts.

What is the judiciary?
This question may be answered in three perspectives;
1) as the system of court in any country or legal system.
2) as the body or persons in the court who adjudicate over controversies and pass
judgement.
3) as the branch of government saddled with judicial functions. such as law interpretation
inter alia.
Major functions of the judiciary.
1) administration of justice (settling of dispute): the judiciary possesses this number 1
function, it is encapsulated in its power to settle disputes either between two persons, or a
person and the government or between the government itself. Eg state against federation.
Section 36(1) for instance provides that in a determination of a civil right or obligation of a
person and by or against the government, the court shall maintain the right to fair hearing.
While we're not concerned with fair hearing here, the introductory phrase of section 36(1)
makes it obvious that the court has power to try cases involving any citizen against any
citizen or in relation to the state. With respect to the former, the court in Craddock
brothers v hunt, rectified a document which did not represent the intent of the seller of a
land, thus resolving the misconceptions and settling the disputes between the parties
involved. With respect to the latter, the court in Gani fawehinmi v Abacha, held that the
African charter on human and people's right to which the plaintiff was relying on,were
enforceable in Nigeria under section 12 of the CFRN, therefore it must be respected. Also
section 232(1) of the CFRN provides that the supreme court shall have the powers to settle
disputes between the federation and state or between states. Eg in AG Lagos state v AG
federation. The court held that the president had no right under the constitution to
interfere with the revenue allocation of local government councils.
2) Judicial review;
The court also has a duty to review and appraise the legality of the acts done by other arms
of the government, in the spirit of checks and balances, and also to avoid abuse of power
and infringement of fundamental rights. In Abdulkarim v Incar Ng ltd, the supreme court
stated that judicial review is predicated on three pillars.
a) to ensure the principles of separation of powers are adhered to.
b) to ensure every public functionary does his duty in line with the constitution.
c) to ensure the verdicts of the lower courts are reviewed by the supreme court so that
injustice of wrong decisions will not permeate the system.
In United state v Loveth, the court held that an act of parliament which targeted and
barred three individuals from seeking federal employment was repugnant and adverse to
their fundamental rights.
3) Guardian of the constitution;
This function I submit is predicated on the upholding and protection of the rule of law, the
court has a duty to make sure the sound principles of democracy is maintained. In O jukwu
v Lagos state, the supreme court hammered on the essence of rule of law, stating that
where the court has given an order of injunction, that all parties to the suit must respect
and comply with such order, including where the government is a party to such suit.
The court also has the duty to protect the constitution from unnecessary attack, eg in the
celebrated case of Lakanmi v AG west, the supreme court stated that the constitution is
subject to no other law as it is the supreme law of the land irrespective of any decree in
force.
4) interpretation of the law;
It is trite in Nigeria legal system that lawmakers do not interpret the law, the onus of
interpretation lies with the judiciary, in doing this they adopt three major rules of
construction. Either the literal rule, which entails interpreting and applying the strict
letters of the law, as seen in R v Banagaza, or the golden rule of construction which allows
the judges to bring in their personal idiosyncrasies especially where the strict
interpretation of the law will do injustice, as seen in R v Princewill, or the mischief rule,
which is aimed at interpreting the law to cure that mischief in which the law was created to
cure, as seen in Gorris v Scot. Other forms of interpretation adopted by the court include,
the ejusdem generis or the noscitur a sociis rule.
5) enforcement of fundamental rights:
There is a legal platitude, that the court is the last hope of the common man, and that is
true.
Section 46(1) of CFRN for instance provides that where a person feels his right has been, is
being or is in danger of being violated, he may approach any high court and institute an
action. Enforcement of fundamental rights come by many ways, it could be by declaratory
judgement, as seen in Shugaba v Ministry of internal affairs, where the court held that the
plaintiff was a valid citizen of Nigeria because his grandparent was as well a citizen. It could
also be by injunction to restrain Further wrong as seen in Adewole v Jakande or by award
of damages as seen iwowari v Amakiri,where the court held that the plaintiff was to be
entitled to damages for the gross violation of his right to dignity of human person,by the
defendant.
The court may enforce the right of a person in other forms such as writ of habeas corpus,
mandamus etc
6) administration of the judiciary:
Since the court belongs to a separate part of the government being the judiciary, then they
are not coterminous with the executive or legislature, thus by way of rules of court, the
court makes laws to ensure the proper functioning of the court system in the federation.
Eg section 236 of CFRN provides that subject to the provisions of the constitution, the
chief justice of the supreme court may make rules of court for the proper functioning of
the supreme court.
7) law making:
Expressly and ordinarily, the court does not make laws, because section 4 of the CFRN
already vests the power to do so in the national assembly, but as we know necessity is the
mother of invention. Thus when the court is faced with a novel case which is not covered
or was not foreseen by the human intellect of the legislature, the court will move forward
and make a pronouncement(judgement) which thereafter stands as a precedent(case law)
to be followed in the legal system. Eg there was no such thing as the law of negligence, it
was after the case of Donoghue v Stevenson, that it came about. Also there was no such
thing as negligent misstatement as a third degree of misrepresentation, it was after the
ruling in hedly Byrne & co v Heller & partners ltd, that it came about. Etc
8) punishment of offenders( enforcement of judgements):
Laws according to the positivist school, are most times not valid and enforceable until
there are sanctions attached, sanctions are penalties or punishments for law offenders. Eg
section 316 of the criminal code provides that whoever takes the life of another shall be
guilty of murder, which is a capital offence punishable by death. Thus where a person takes
the life of another, the court may punish such a person by sentencing him to death, as seen
in Mati Musa v state. The court as well makes sure its judgement is enforced, for instance,
where a person is asked to pay a particular sum and he refuses, a writ of fifa may be levied
on his valuables in order to make up for such payment.
Other ways the court punishes offenders includes, imprisonment, fine, community service,
caning etc.
9) Advisory capacity;
The court stands in advisory capacity most times to the executive or legislature, especially
in constitutional matters. The National Judicial council for instance is a collection of
experienced legal practitioners which falls under the judiciary comprising the bar and the
bench. In impeachment procedures too, at some point a 7 man panel made up of judges are
brought in to judicially investigate the allegation of gross misconduct leveled against a
person.
10) administers commissions of enquiry and tribunals.
Commissions of enquiry are set up most times on issues bordering on constitutional
matters affecting the nation, Eg commission of enquiry on revenue allocation formula,
commissions like this are headed by mostly judges with wealth of experience. Secondly
tribunals which are special courts are also headed by judges to facilitate the course of
justice and avoid crowding in the courtroom.
Miscellaneous functions.
1) appointment of certain local officials of the court
2) granting of licence, patents and copyrights.
3) appointment of guardians and trustees
4) admission of wills
5) settling of issues in succession, rights and administration of estate.
6) naturalization of aliens
7) contracting of marriage.
8) preservation of valuable properties for a person. Eg (gold).
9) settling disputes arising from matrimonial or family causes.
10) validating relevant documents, by way of authoritative stamps. Eg Deeds.
Constitutional basis.
Section 6(1) of the CFRN provides that the judicial powers of the federation shall be vested
in the courts to which this section relates.
Subsection(2) provides that the judicial powers of a state shall be vested in the courts to
which this section relates, being courts established, subject as provided by this
constitution, for a state.
SubSection(3) provides that the court to which this section relates, established by this
constitution for the federation and for the states, specified in subsection 5(a) to (i) of this
section shall be the only superior courts of record in Nigeria, and save as otherwise
prescribed by the national assembly or state House of assembly, each court shall have all
the powers of a superior court of record.
subsection (4) provides that nothing in the forgoing provisions of this section shall be
construed as precluding;
a) the national assembly or any house of assembly from establishing courts, other than
those to which this section relates, with subordinate jurisdiction to that of a high court.
b) the national assembly or any house of assembly which does not require it, from
abolishing any court which it has power to establish or which it has brought into being.
subsection(5)relates to;
a) the supreme court of Nigeria
b) the court of appeal
c) the federal high court
d) the high court of the fct
e) a high court of a state
f) Sharia court of appeal of fct
g) Sharia court of appeal of a state
h) customary court of appeal of the fct
i) customary court of appeal of a state
j) such other courts as may be authorised by law to exercise jurisdiction on matters with
respect to which the national assembly may make laws.
k) such other courts may be authorised by law to exercise jurisdiction at first instance or on
appeal on matters with respect to which a house of assembly may make laws.
observation;
While the courts listed in SubSection 5 from paragraph (a) to (i) may be regarded as
constitutional courts, and as well superior courts of records. I believe the phrase in
paragraph (j) and (k) captures other courts created but not spelt out in the constitution,
and they may be referred to as court of inferior records, of summary judgement or
unconstitutional courts. Eg;
a)magistrate/districts court
b)Customary courts
c)Area courts
d)Sharia courts.
Note; the above mentioned is without prejudice to the establishment of other tribunals by
virtue of section 285 to handle matters specifically set out by any act of the legislature. Eg
tribunal on election petitions.

Dismissal of a judicial officer

To remove a judicial officer from office, by way of subsidiary regulations, the NJC tries the
judicial officer, the chief justice is usually the chairman of the NJC, but for the purposes of
democratic processes, he is not allowed to be the chairman in all panels, especially where
his own matter is been tried as this appears inconsistent with the principle of natural
justice, Nemo Iudex in sua causa.
Once the allegations have been thoroughly investigated and proved by the panel they make
an address to the president advising him on steps to take and the president at this point
has no discretion whether to remove or not all he does is to present it to the senate.
The matter is then tried again by the appropriate committee, the senate at this point may
invite the judicial officer for proper determination of his rights and liabilities, in line with
the principle, "Audi alteram partem". Eg the present trial of the Chairman of the code of
conduct bureau Danladi Umar, by the senate, who was allegedly seen in a viral video
assaulting a security officer in a mall.
In Fact it becomes critical at this point that the senate implicitly has the Powers to decide
the fate of the judicial officer.
With respect to the grounds for removal of a judicial officer it may be based on;
1) infirmity of the mind or body
2) misconduct
3) contravention of the code of conduct. And
By extension in Nganjiwa v FRN, it was held that a judicial officer may as well be removed
from office where he is in breach of oath of office. Eg chief Judge Shedrack Nwanosike of
abia state was once removed for age falsification.
Judicial officers that can be removed in these rigorous procedures are provided for in
Section 292(1)(a) (i)&(ii)
Which is to the effect that all judges of the federal courts which are the heads of such
courts Eg:
the chief justice of nigeria, president of the court of appeal, chief judge of the federal high
court, chief judge of the federal high court of the fct, grand khadi of the Sharia court of
appeal of the fct and president of the customary court of appeal of the fct, may be removed
by the president acting on an address supported by two thirds majority of the senate.
Praying that he be so removed for his inability to discharge his functions whether arising
from infirmity of mind or of body, or for misconduct or contravention of the code of
conduct.
And on the state level;
The chief judge of a state, the grand khadi of the Sharia court of appeal of a state, the
president of the customary court of appeal of a state, may be removed by the governor
acting on an address supported by a two third majority of the house of assembly of a state.
Praying that he be so removed for his inability to discharge his functions whether arising
from infirmity of mind or of body, or for misconduct or contravention of the code of
conduct.
However paragraph (b)&(c) is to the effect that where it involves judicial officers not listed
in the aforementioned section above, then the president or governor as the case may be,
will on the recommendation of the NJC however without approval of the senate or house of
assembly , remove the judicial officer for any of the grounds for removal.
It is critical to point out the subtle difference which exist as to the manner of removal in
the state level, though the NJC is active in that realm too, but most of the investigations are
carried out by the Judicial service commission which then may redirect the case to the NJC,
or with NJC's consent carry out appropriate actions.
The importance of these procedures cannot be over emphasized, failure to abide by it, is
obviously a disregard to the tenets of democracy as these procedures are laid down most of
the time to ensure checks and balances in the spirits of democracy. In Justice Walter
onenghen v FRN, the appellant was charged under section 20 code of conduct bureau act
for failing to declare his assets as a public officer, consequently the president abruptly
acted on that order and ordered for him to step aside, the manner in which he was served
the notice and speedy trial was indeed a very strange occurrence to the constitution.
Originally its an established law that as stated in Ngajinwa v FRN, that it is the NJC that has
powers to investigate at first instance any Judicial officer found wanting, the appeal court
condemned the abrupt and arbitrary removal of the chief justice without due process of
law, as the said Code of conduct tribunal even lacked the jurisdiction at first instance to try
the said matter, however the undue act of the president was left unattended as he quickly
installed justice tanko yasai as the new head of the court.
A reference and comparisons can be made to the notorious case of justice Theresa uzokwe
of abia state v NJC , where the chief judge was removed exclusively by the house of
assembly for her high handedness and unruliness, the NJC was not pleased by the flagrant
disregard for the laid down procedures, in fact it did not just reinstated the chief judge but
it automatically retired the Acting chief judge.

Difference between jurisdiction and judicial powers.

Firstly jurisdiction in Ayu v Madug was defined as that authority which the court has to
preside over matters litigated before it or to take cognizance of issues brought before it in
a formal way for decision.
The Black's law dictionary defines judicial power as the authority, both constitutional and
legal given to a court and it's judges render and give judgement on court worthy case
brought before it.
In Cohens v Virginia, Judicial power is “the power of a court to decide and pronounce a
judgment and carry it into effect between persons and parties who bring a case before it
for decision.”

1) jurisdiction deals with scope, but judicial powers does not:

jurisdiction deals with the scope of the competence of a court, either as to persons,
territory or subject matter which is peculiar to some courts.eg in AG abia state v AG
federation, the exclusive original jurisdiction of the supreme court in settling disputes
between the federation and states was upheld. but every court has some inherent powers
and is not inhibited by scope or territory as long as the court has jurisdiction over the case,
the court may.
a) issue summons
b) issue a warrant of arrest
c) punish for contempt infacie or exfacie curie
d) give out writs
2) judicial powers are not self-existing, they depend on jurisdiction in order to operate,
judicial powers are exercised in cases or controversies which a court has jurisdiction over,
the court cannot require evidence from parties who have not litigated before it, neither can
it raise a fact Suo motu when there's no case. thus we may say the assumption of
jurisdiction is condition precedent to the exercise of judicial powers. Eg objections are
usually raised against the jurisdiction and not the powers of the courts because a court
which has not assumed Jurisdiction cannot exercise any power.
3) lastly the execution of a judgment is dependent on judicial power mainly, Eg the court
has power to issue a writ of fifa for a bailiff to sell the property of a judgement debtor
inorder to pay the judgement creditor.

Conflict of laws in Nigeria.

Conflict of laws simply means the clashing or inconsistencies between two or more laws in
Nigeria, this could be attributable to;
1) reception of English law
2) un-codification of customary laws
3) adherence to the doctrine of precedent
4) multi-ethnic nature of the Nigerian polity, leading to multiplicity of customs which
causes conflict at some points.
Classification of conflict of laws
a) English law and customary law
b) Different systems of customary law
c) Federal and state enactment
d) Any law and the constitution
English law and customary law.
It is critical to note that only the high court laws of the old Northern region mentioned
expressly English law as an alternative to customary law, bearing in mind our colonial
history. And only it also contains a residuary clause to the effect that where no express rule
applies, the court shall be governed by the principles of justice, equity and good
conscience. Thus in Cole v Cole, the court coming under this provision applied English law
as against customary law.
Where there is a conflict between customary law and English law, the high court laws of
different states normally contain provisions on the resolution of such conflicts.
In resolving conflicts between the two laws, the status of the parties is always of paramount
importance, And different classifications exist, although they essentially mean the same
thing. Eg
a) high court laws of Lagos state and old Northern region groups parties to a suit as
"natives and non natives"
b) high court laws of Edo, delta and old western region groups parties as Nigerians and non
Nigerians.
c) high court laws of old Eastern region group parties as persons of Nigerian descent and
persons who are not of Nigerian descent.
Section 18 of the high court laws of the old Eastern region.
subsection (1) provides that the court shall observe and enforce the observance of customary
law and shall not deprive any person of the benefit thereto except when any such customary
law is repugnant to natural justice or incompatible either directly or by implication with any
written law from time to time in force in the state.
subsection(2)provides that such customary law shall be deemed applicable in any civil cause
or matter where the parties thereto are persons who are of Nigerian descent also in any civil
cause or matter between persons of Nigerian descent and persons who are not of Nigerian
descent where it may appear to the court that substantial injustice would be done to either
parties by a strict adherence to the rule of any law or laws other than customary law.
subsection(3) provides that no party shall be entitled to claim the benefit of any customary law
where it shall appear that either from the express contract or from the nature of the
transactions, that the parties had agreed or be deemed to have agreed that their rights and
obligations be governed exclusively by any other law other than customary law. Or where the
transaction is one unknown to customary law.
The above provisions can be summarised as this.
a) firstly as a "general rule" cases between natives shall be decided according to customary
law.
b) secondly cases between natives and non-natives shall be determined according to
customary law if substantial injustice would result from strict adherence to English law.
c) thirdly as an exception to the first two situations, cases which under the rules will be
decided in accordance with customary law will in fact be governed by English law either if
there was an agreement, express or impliedly that English law should apply or if the the
transaction is unknown to customary law.
Therefore for which law to apply in any scenario will depend on the status of the parties
and the facts of each case.
Cases between Nigerians
As a general rule as stated above, cases between Nigerians also referred to as natives or
persons of Nigerian descent, shall be governed by customary law. Thus in LABINJO V
Abake, a girl aged 17 or 18 was sued under trade debts and her defence was based on infancy,
but the court had to determine whether the definition of infancy under customary law or
under the English law shall apply, their dictum was to the effect that where a case was
properly tenable at customary law and the custom is not repugnant to natural justice or
incompatible with any statute, and the parties had not expressly or impliedly wanted their
transactions to be governed by any other law, then customary law will validly apply. In Koney
v UTC it was held that where a party was opposed to the application of any law, then the onus
was on him to satisfactorily prove why it shouldn't apply.
The exceptions to the general rule
a) Agreement to be found on English law:
It is a trite law that Where parties agree that English law should govern them, then
customary law cannot apply, this agreement could be express, implied or even assumed
from the nature of the transactions. Thus in Okoli v Ibo
The court of appeal in Jos held in a dispute between two ibos residing over there in a dispute
for the supply of petrol that English law was applicable because of their respective
occupations,and the fact they did not intend that the Islamic law or Ibo customary law should
govern them.
However because English law is applicable to a particular matter to which parties must
have agreed, does not necessarily make it holistically applicable in all related matters
thereto. In Nelson v Nelson, after the government had acquired compulsorily land, belonging
to three brothers at tenant-in-common, the eldest brother used the compensation money with
the knowledge of the other two brothers and got another land but in an English law
conveyance form, however his brothers intended the land to be held in customary law form,
thereafter he resold it without the consent of the other brothers, while the brothers sued
contending that their consent was relevant at customary law, the eldest brother argued that
because they consented that the land be conveyed to him at first in English law form therefore
they agreed that all matters in relation to the land be governed by English law. The court
however rejected this argument and held against the eldest brother.
But however where a person agrees in relation to a property that English law should govern
the transactions, it as well also governs the successors in title, nonetheless it does not affect
the customary rights of strangers to the agreement, as seen in Villars v baffoe
b) Transactions unknown to customary law.
Where a transaction is unknown to customary law then English law shall apply, there are
many contemporary activities which may come under this class, e.g. electronic
transactions.
It should be stated that customary law was considered non-script until the judgement in
Rotibi v savage, where the ratio given was to the effect that the use of writing does not
either indicate that the transactions in question is unknown to customary law or that the
transactions in question is in English law.
In Salau v Aderibigbe the court held that a transaction is unknown to customary law where
it is of such nature that the members of the community do not consider it to be subject to any
of the existing customs accepted as binding on them. however is relevant to note that a
customary law is flexible, and thus may be subject to change and expediency.
b) Succession and inheritance;(upon death)
In inheritance the court will normally be concerned about the personality and conduct of
the deceased rather than the parties to the dispute.
Where a deceased subject to customary law made a will?
The general rule is that where the deceased, though subject to customary law, made a will
under English law(wills act of 1837), the transaction shall be governed by the latter. Thus in
Apatira v Akenke, the deceased who was subject to a custom had defectively made a will, and
the counsel argued that the transaction should probate under Islamic law, but the court
rejected this argument as it was obvious the deceased had intended to be governed under
English law.
Although the wills act provided for no consequence incase of any incompatibility, where
there is a conflict with customary law the provisions of the wills act always prevails. Thus in
Yinusua v Adesubokan, a case of Northern extract, the issue before the lower court was
whether a Muslim testator could by virtue of the wills act, depose of his property in a manner
inconsistent with the Moslem law, which required that persons other than the heirs of a
testator ought not to receive more than one third of his estate,and depositions to his children
must be equal in share, the supreme court in quashing the verdict of the lower court held that
in making a will under the wills act, a testator was not encumbered by any requirement of
custom and native law. However, two submissions are relevant to be made here:
1) this position is only tenable in the old Northern and Eastern region states where the wills
act of 1837 is still in operation, whereas in the old western region including Bendel state,
the "wills law" was enacted domestically, mostly to ensure the observance of customary law
in the exercise of testamentary capacity.
2) secondly, the circumstances of the cases above were purely not inequitable.
And Thus in Oke & anor v Oke& anor a case in then Bendel state, the deceased a native of
urhobo had via a will inconsistently with the urhobo custom, devised his house on which he
lived to the defendant who was his son from another wife and was not even his eldest son, the
plaintiffs upon suing, the court held in line with section 3(1) of the wills law, that the action of
the deceased was unlawful and not valid.
Same principle was followed by the supreme court in the case of Idehen & ors v Idehen &
ors, where the eldest surviving son predeceased his deceased father and so was not able to
inherit the two houses in Benin city as provided for in the wills act, the supreme court
rejected the view that the children of the eldest son should inherit it as required by the
wills act. The court relied on section 3(1) of the wills law of Bendel state, which makes it
compulsory for a will to be subject to customary law, and held that the property be passed
to the eldest surviving son of the deceased Joshua Idehen.
Recent developments;
In imo state the wills act is no longer in vogue as she enacted her own wills edict. And the
edict recognises the right of a testator to depose of his property by will but the will could
be challenged by;
a) the wife or husband to a testator
b) child...
c) a parent, brother or sister of the deceased who before the death of the deceased was
taken after by the deceased. on the ground that the deposition affected by the will is not as
such as to make reasonable financial provisions for any of the afore-said persons.
where the deceased died intestate(without a will)
In this case,the court usually adopts any of the principles below.
a) inherent incident theory.
b) intention or manner of life theory.
 Under the inherent incident theory, the courts adopted the attitude that once a person
even though subject to a customary law contracts a Christian marriage on his death
intestate, English law shall apply to govern succession to his estate. The leading case on
this is Cole v Cole, where the court held that the property of a native who had entered a
Christian marriage and later died interstate should be distributed in accordance with English
law on the subject of (statute of distribution) and not in accordance with customary law.
This principle has also been applied in Gooding v Martin and the case of Administrator
general v egbuna. In Fact the principle was even stretched to include that once a person
subject to customary law contracts a Christian marriage, his estate is automatically and
irrevocably subject to English law.
However the court seemed to have rejected this theory, instead it adopts the second theory
and tries to look at the intention of the deceased since it would be unjust to apply a law
totally inconsistent with the manner of life and expectations of the deceased. Cases
decided this way are Smith v Smith and Ajayo v White.
Cases between Nigerians and non Nigerians
Classes of persons here ought to be understood further to mean.
a) Nigerians v indigenous non Nigerians (africans) or
b) Nigerians v non-Nigerians other than Africans.
The position is clear here,by the combined effect of section 18(2) of the old Eastern high
court laws, section 26(2) of the old western state high court laws & section 34(2) of the
old northern region high court laws. provides that customary law shall apply in a suit
between a Nigerian and non Nigerian where it will appear to the court that substantial
injustice will be done to either party where any other rule of law other than customary law
is applied.
Therefore English law from the inception will be presumed to govern cases between
Nigerians and non-Nigerians other than indigenous Africans unless where substantial
injustice may arise.
This rule was applied in Koney v UTC where an educated African carpenter brought an
action for breach of contract and the European company pleaded statute of limitation, the
plaintiff contended that English law should not govern the case only based on the defence that
he was an African. The court rejected his argument and held against him.
Conflict between different systems of customary law.
There could be conflicts between different customary laws as to which will apply in a
transaction. This is so Because, customary law is personal, people move with their
customary law wherever they go,and two different customary laws may prescribe two
different positions on one question.
Section 20 of customary court law of the western region and section 20 of the old
Northern state native court law and section 23(1) of the customary court law of old
Eastern States provides that in such a conflicting situation that the customary law to be
applied will be either:
a)one prevailing in the area of the jurisdiction of the court or
b)one binding amongst the parties.
c)and by extension the "lex sixtus"(where the land is situated) that is where it is a land
matter.
Although nowhere in the laws above is there any specific position as to when option "a''
shall apply or when option "b" shall apply, section 16 of the customary court edict
applicable in imo state and abia created for such. For instance, subsection 2(c) provides
that a customary law shall be deemed to be binding upon a person where that person in
cases of claims under a customary law of inheritance, makes a claim in respect of the
property or estate of a deceased person and the deceased person was native of the place in
which the customary law is in force.
And The expression " law prevailing in the area of the jurisdiction of the court" was held in
R v Ilorin ex parte aremu, to be that customary law predominant in that area, and the court
rejected the view that two customary laws could be predominant concurrently.
In succession cases.
The general rule is that whether testate or intestate succession, where English law or local
statutes do not apply, the personal law of the deceased shall be the law presumed to be
binding on the parties. According to prof Obilade, this is because persons claiming through a
deceased person should be subject to the law which governed the deceased.
In Tapa v Kuka, the deceased a Nupe of Bida in then Nigerian province died intestate leaving
a house in Lagos, both parties to the suit admitted that the applicable law was that of Nupe
and not the law prevailing in Lagos.
However where the personal law of the deceased is unknown or is not established before
the court, the law prevailing in the area of the jurisdiction of the court shall apply.
Also the personal law of the deceased may also be the law prevailing and his estate is
situated there.. or maybe he has changed his personal customary law to that of the place
within the area of the jurisdiction of the court, as seen in Olowu v Olowu.. thus a person
may change his personal law by choice under native law and custom. However the court in
Arasi v Arasi, stated that this must be by a much long time naturalization that the settler
and his descendants have merged with the natives and have adopted their way of life.
In the instant case the deceased adeyinka Olowu was a yoruba by birth, he married a Benin
woman, settled and established his home in Benin city, he applied to the oba of Benin and
was naturalised alongside receiving a title in Benin custom. Thus it was obvious he enjoyed
all rights and obligations imposed on the Benin natives under their custom. When he died
an issue arose between his children as to what custom should apply in inheriting his
property, whether that of the ijesha Yoruba or Benin custom. The court held that the Benin
custom was to apply.
Also in Ghamson v Wobill, which was a claim in succession with respect to a dispute of title
to land, both parties traced their title to the previous owner, a woman who had been
subject to Fanti custom. The court held that ordinarily efutu custom ought to have applied
but since they claim in succession, they must be bound by the custom to which the
deceased was subject to.
Land cases.
In land matters, where there is a conflict between two different customary laws, it is always
the lex sixtus that applies, that is the customary law in the area in which the land is
situated.
Other civil causes.
In other civil causes the law binding between the parties could be applied in three
instances,
1) both parties are not natives of the area of jurisdiction of the court
2) where the subject of the cause or matter was not entered into in the area of the
jurisdiction of the court or
3) one of the parties is not a native of the area of jurisdiction of the court and the parties
agreed or maybe presumed to have agreed that their obligations should be regulated wholly
or partly by the customary law applying to that party.
Apart from these three instances the law to be applied will be the law prevailing in the area
of jurisdiction of the court.
However where the law binding between the parties can be ascertained, then that law
rather than that prevailing in the jurisdiction of the court shall be applied, especially where
both are different from each other. As seen in Osuagwu v Soldier.
Federal and state legislations
Another instance where a conflict of law may result is where there is inconsistency in a
federal and state enactment. In NNPC v Chief Elumah, section 95, and 97 of the sheriff and
civil process act was in conflict with Order 4, rule 1, 4 , and 5 of the high court of Bendel state
civil procedure rules. The court of appeal held that the federal act shall prevail.
Any law and the constitution
Conflict may also arise where there is a conflict between any law or statute and the
constitution, the position of the law is clear-cut that the constitution shall prevail. Thus in
Tony Mommoh v Senate the court declared section 31 of the legislative powers and privileges
act null and void for being inconsistent with section 42 of the 1979 constitution.

Exam analysis
Mr Oris, originally from Benin married an Ibo wife from Onitsha and relocated there. He
stayed there for years till the rest of his life, he even took a title in the local Onitsha
community. Later on he died intestate, and some of his children alleged that the Onitsha
custom should apply, and the other children alleged that the Benin custom should apply.
With the aid of statutory and or judicial authorities, advice the parties on the relevant
position of the law?
Answer
Having perused the case, is obvious the issues preponderates around conflict of laws as to
different systems of customary law vis-a-vis the position of the court with respect to
inheritance of an intestate?
One broad issue and consequent analysis I believe shall suffice to do justice to it.
1)whether the custom of Benin or that of Onitsha shall apply?
Principles
Firstly conflict of laws refers to the clash or inconsistencies in laws in a legal system, arising
from any of the following:
1)Non codification of customary laws
2) adherence to judicial precedence
3) reception of English laws
4) multi ethnic nature of Nigerian polity.
With respect to conflict of laws between two persons who are of Nigerian decent, the
position of the law is clear, the general rule is that customary law shall apply, however
section 18(3) of the high court laws of the old Eastern region provides that a person shall
not be entitled to claim the benefits of Customary law where either from the express
contract or impliedly from the nature of the transactions both parties intended to be
exclusively governed by some other law other than customary law, or where the
transaction is unknown to customary law.
From this provision three exceptions may be inferred.
1)express or implied exclusion of customary law;in Okoli v Ibo
The court of appeal in Jos held in a dispute between two ibos residing over there over the
supply of petrol that English law was applicable because of their respective occupations,and
the fact they did not intend that the Islamic law or Ibo customary law should govern them.
However because English law is applicable to a particular matter to which parties must
have agreed, does not necessarily make it holistically applicable in all related matters
thereto. In Nelson v Nelson, after the government had acquired compulsorily land, belonging
to three brothers at tenant-in-common, the eldest brother used the compensation money with
the knowledge of the other two brothers and got another land but in an English law
conveyance form, however his brothers intended the land to be held in customary law form,
thereafter he resold it without the consent of the other brothers, while the brothers sued
contending that their consent was relevant at customary law, the eldest brother argued that
because they consented that the land be conveyed to him at first in English law form therefore
they agreed that all matters in relation to the land be governed by English law. The court
however rejected this argument and held against the eldest brother.
But however where a person agrees in relation to a property that English law should govern
the transactions, it as well also governs the successors in title, nonetheless it does not affect
the customary rights of strangers to the agreement, as seen in Villars v baffoe.
2) transaction unknown to customary law: in Salau v Aderibigbe the court held that a
transaction is unknown to customary law where it is of such nature that the members of the
community do not consider it to be subject to any of the existing customs accepted as binding
on them.Thus in Green v owo,transactions of a land based on English form conveyances and
chain of title documents was held to probate under English law other than customary law.
Also in Bakare v Coker, transactions for the sale and delivery of goats skins in return for
promissory notes was held by the court to be unknown to customary law.
Also in Griffin v Talabi, the court applied English law on a land transactions completely
recorded on the basis of English law with relevant purchases reciepts attached.
3) manifest injustice arising from application of customary law; in Koney v UTC where an
educated African carpenter brought an action for breach of contract and the European
company pleaded statute of limitation, the plaintiff contended that English law should not
govern the case only based on the defence that he was an African. The court rejected his
argument and held against him because to have accepted his shallow claim would have
amounted to injustice.
In the instant case, which is a conflict of different systems of customary law, recourse must
be taken to section 20 of the customary law of western state, section 20 of the native law
of northern state, and section 23 of the customary law of the old Eastern state, which
Provides inter alia that the applicable law in a scenario like this shall either be that which is
binding on both parties or the customary law prevailing in the area of the jurisdiction of the
court, and by extension where is a land case, the lex sixtus.
The instant issue is one of inheritance, therefore the custom binding amongst the parties
shall apply and according to Prof obilade, both parties in issues like this must accept to be
their binding custom that law to which the deceased was subject to. ie the personal law of
the deceased. this is so because with respect to matters of inheritance, the court is always
concerned with the conduct of the deceased while he was alive rather than the status of
the parties in dispute, Eg in Tapa v kukah, the deceased intestate a Bida of Nupe, had a
house in Lagos which was in dispute, both parties agreed that it was not the law in Lagos
but rather the custom of Nupe that was binding among them.
Also the court in Olowu v Olowu.. stated thus, that a person may change his personal law by
choice under native law and custom, but this must be by a much long time naturalization that
the settler and his descendants have merged with the natives and have adopted their way of
life.
Therefore I find it worthy to seize the opportunity to emphasise that the position of the
court held was wrong in both savage v macfroy & fonseca v passman, that a man who is a
foreigner cannot be taken to have changed his way of life even after he had married in a
customary manner and from his conduct all through out his life lived subject to the said
custom.
With respect to the instant case, it is also critical to point out that according to the law,
where maybe the personal law of the deceased could not he established or is unknown,
then the Customary law prevailing in the area of jurisdiction of the court shall prevail. In
in R v Ilorin ex parte aremu, while the court consented to the view that the deceased native
law may be same with that prevailing in the area of jurisdiction of the court, it however stated
that the custom prevailing in the area of the jurisdiction of the court is simply that customary
law predominant in that area, and the court rejected the view that two customary laws could
be predominant concurrently
Application
From all suppositions and principles of the law, the applicable custom in this case obviously
point towards the native law and custom of Onitsha to which the deceased had intended
himself to be bound by alongside his properties. As seen in Tapa v kukah. And I believe this
view is meritorious in law because Mr Oris has right to validly change his choice of custom,
as seen in Olowu v Olowu.
However is relevant to posit that the position of the law would have been different where
Mr Oris had contracted any will, there the question would have been whether he has the
power to do so when he was subject to custom, by the authority of the law in Apatira v
akenke & Yinusua v adesubokan, the answer is to be answered in the affirmative, because
the supreme court noted in Adesubokan's case that a person is not encumbered by any
custom when making a will. However the court will not at all times swiftly apply a will, it
will normally consider whether any law or edict is made giving customary law a right of
testamentary capacity and whether the will is made equitably subject to customary law, as
seen in oke&anor v oke&anor and the case of Idehen&ors v Idehen&ors.
Conclusion
While the position of the law discussed above is exhaustive and well settled, I shall
reasonably advice the parties seeking for the enforcement of the Benin custom to
back-pedal in their claims, as it obviously is devoid of merit.