Sources of Nigerian law denote where Nigerian law came from. The major question is that where did we get the present laws that we now call our own? Did they fall from heaven? Where did we get them from? We generally have six sources of Nigerian law they include:
THE RECEIVED ENGLISH LAW
These are laws that were in operation in England and due to the reception of English law, they become applicable in Nigeria. The reception of English law deals with the way the received English law was accepted into Nigerian legal system. The major reception act in Nigeria is the Interpretation Act. The Interpretation Act receives English law in S.32(1) which provides that the rules of common law, the doctrines of equity and statutes of general application which are within the competence of the federal legislature in existence before 1900 shall be in force in Nigeria.
However, S.32(2) provides that their application is limited subject to Nigerian jurisdiction or when there is a Nigerian federal law or court decision available. This was seen in the case of LabinjohvsAbake where the application of the Infant Relief Act was rejected because there was already a local legislation that covered that area. S.32(3) allows for the alteration of the imperial laws in order to make it applicable to the Nigerian situation. For example, where England is used, it would be replaced with Nigeria, when the British currency is used it would be replaced with the Nigerian currency and so on.
NIGERIAN LEGISLATION.
This is the most important source of Nigerian law. It is usually made by the legislature which consists of the house of rep and the Senate .They are referred to as the national assembly S.4(1) CFRN 1999. Legislation is classified into statute or subsidiary legislation. Statutes are laws that originate from any chamber of the national assembly. Subsidiary legislation are those that emanate from a body that is not the legislature. They can also be called delegated legislation. They are usually empowered by an enabling statute of the national assembly. Subsidiary legislation can be called rules, legislation, bye-laws, instruments, orders etc. Also, a subsidiary legislation must not exceed the limit of the power delegated to it by the enabling statute. Thus, subsidiary legislation is inferior to statutes. This means that a statute can repeal or amend the power of a subsidiary legislation.
FORMS OF LEGISLATION
Legislation can be in form of ordinances, acts, laws, decrees or edicts. Ordinances are laws made by the federal legislature before 1st October 1954. Acts are laws made by the by the national assembly which is made up of house of reps and the senate. Laws are legislation made by a state house of assembly. Decrees are laws made by the federal military government while edict are legislation made by state military governments.
It should be noted that for any legislation to be valid, it should originate from the appropriate authority. During the civilian regime, it is the national assembly or state house of assembly. In the military regime, it is the federal military government and state military government.
DIVISION OF LEGISLATIVE POWER.
These are divisions of legislation during a civilian regime. They are divided into:
THE SUPERIORITY OF NIGERIAN LEGISLATION OVER OTHER SOURCES
Nigerian legislation is the most important because it is through Nigerian legislation that other sources of law are validated into the Nigerian jurisdiction. This can be seen in S.32 interpretation acts LFN 2004 that makes sure that the received English is accepted as law in Nigeria. Also, S.27(1) of the High court of Lagos law validates customary law.
Also, legislation also takes life from other sources of law. For example, it abolished some customary laws that dealt with slavery, witchcraft, trial by ordeal etc. For example S.207 to 211 of the criminal code abolishes witchcraft and trial by ordeal
It can also modify other sources. It can also abolish customary law indirectly. For example, S.3 of the legitimacy act modifies the Yoruba law of acknowledgement. It says that a child is not legitimate until the mother is married, however, the Yoruba customary law says that as long as the child is acknowledged by the father, he is not a bastard. Also, in the case of LabinjohvsAbake, it was declared that an indigenous law indirectly nullifies the infant relief act which is not a Nigerian legislation but a statute of general application.
JUDICIAL PRECEDENT
Judicial precedent originates from the principle of stare decisis which means ‘let the decision stand’. It means that similar cases must be treated alike. the reason for this is to achieve uniformity and certainty in the administration of justice. Therefore judicial precedent can be defined as the decisions of the court based on the material facts of a case, it could be called judicial precedent, stare decisis or case law. it is the principle of law upon which a judicial decision is made.
Its not all the aspects of the judgment that is relevant in determining the principle decided in a court. It is the ratio decidendi that is relevant in determining the judicial precedent. However, the other parts of the judgment are not entirely useless. The other parts of the judgment are referred to as obiter dictum. Although an obiter dictum is not really a present judgment, in a later case, it can be adopted as a ratio decidendi.
With all these, can it then be contended that judges make law? Yes, by all means, however, their law is not legislation because it wasn’t passed by the national assembly. Also, judicial precedents can either be binding or persuasive. Decisions made by a court of higher jurisdiction are binding on courts of lower jurisdiction. However, decisions by court of co-ordinate jurisdiction are persuasive
FORMS OF JUDICIAL PRECEDENT
Judicial precedents may be:
In conclusion, it should be noted that without the hierarchy of courts and an efficient law reporting system, the principle of stare decisis will be impracticable.
Credits: Afribary Researcher
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