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 FEDERAL UNIVERSITY OF TECHNOLOGY MINNA

GST 105 – Introduction to Nigerian law (2 Units)

 COURSE OBJECTIVES

At the end of this course, students should have good understanding of the following concepts of law

 §       The meaning of Law.

§       Schools of thought (naturalists school, realist school, sociological school, historical school)

§       Legal terms and terminologies.

§       Classification of Law.

§       Sources of Nigerian Law: Local (Nigerian legislations; received English Law), the doctrines of equity; the statutes of general application; judicial precedence; books of authority. Nigeria Court System. Nigerian Constitutional development.

§       The rule of Law.

§       Separation of powers.

§       Impeachment proceedings.

§       The immunity clause, extents and limitations.

§       Revenue allocation and the constitutional derivation formula.

§       The Constitutional provision on fundamental human rights.

§       Citizenship.

 DEFINITION

 BRIEF INTRODUCTION

What is law?

Law is defined as set of rules set to govern the behaviour of the people in a community. It is what the people lay down as codes of behaviour to follow. Law varies from society to society and with cultural behaviour of the people or morals.

  FEATURES OF LAW

From the above, we can pin point out features of law which without, law ceases to be law. These include:-

a.                 Law is normative: This means it originated from society. It set rules of authoritative standards to guide human behaviour and conduct in that society or state.

b.                 Law is industrialized: - This means it is codified and its codification, application and modification are regulated by some institution in the society or state such as the police, courts or prisons.

c.                 Law is Coercive: This means that law commands obedience and where obedience is not respected it has internal machinery that will compel obedience by the use of force.

 TYPES OF LAW

There are two types of laws. We have written or unwritten and Civil or Substantive or Procedural Law

 Written Laws:

 These are also referred to as enacted laws or man made laws. They are laws passed by the elected representatives of the people meeting in a legislative house or house of parliament as the case may be. They are passed in a prescribed manner. Some laws require the vote of 2/3 majority, others, simple majority.

 Unwritten laws

It is also refer to as unenacted laws. They include:-

a.                 Customary law

b.                 Common law

 CUSTOMARY LAW

 Customary law is the practice of people generally accepted by the community as binding, the breach of which is supported by customary sanction.

 CHARACTERISTICS OF CUSTOMARY LAW

1.                They are written

2.                they are passed from father to son by oral tradition

3.                they change with time

4.                it applies to a given society, community or tribe.

  NB:  Sharia (Islamic Law) has been categorized as a customary law by means of sec. 5 of Sharia Court of Appeal law.

 The all important question here is whether Sharia is a customary law. It has been subject of judicial interpretation and debates among jurist. Sharia is not a customary law because if compared with the characteristics of customary law as it is written, it is not flexible (i.e. It does not change with time). It is written in form of qua ran and hadith.

           Having made this instance, it is pertinent to note that before customary law can apply in our court, the person who claims the existence of that customary law must first establish that it exist. There are two ways of establishing the existence of customary law. One is by Judicial Notice, which is further subdivided into;

a)                Witness

b)                The use of assessors

c)                The use of book of authority

 JUDICIAL NOTICE

          A custom which has been tried and proved several time in the court of law to the extent that the court recognize its existence so that further prove of its existence is no longer necessary is said to have gain judicial notice.

          Furthermore, where a custom has gain notoriety in court, it is said to be judicially notice.

 Use of Evidence:

Evidence means prove, to bring something before the court in order to prove the existence of another thing.

There are three ways to prove the existence of customary law by (i) witness. Witnesses are person call to give evidence in court of the existence of a customary law. They are usually chief or elders in the society. Where the choice arises between the chief and an elder who would you choose? The court will normally choose the chief no matter how young he is. This is because chiefs are considered to be the custodian of the tradition.

 The use of assessors

Assessors are people who possess knowledge of custom and tradition of people of any given community. They are often considered as experts in such custom and tradition such custom and tradition. Assessors are usually sit together with judges and advice them on the existence or otherwise of customary law. They do not take part in the ultimate decision of the court. Their role is advisory in nature.

 Use of Books

These are books that are books that are written by people with intimate knowledge of the custom and tradition of people of any given area. However, before such books can be use in court, they must fulfill the following

i)                  they must relate to the custom and tradition of the people it is meant to apply

ii)               It must be taken by them to be a book of authority of their custom.

 VALIDITY TEST OF CUSTOMARY LAW

There are three validity tests for customary law

1)   Repugnancy text

2)   Incompatibility

3)   Public Policy Test

 Repugnancy test

This test requires that a native law and custom whose existence has been established must not be repugnant to natural justice, equity and good conscience. What this means is that the native law and custom or customary law which is said to exist is tested by the court to see if it goes against the rule of natural justice, equity which is fairness and good conscience. If it is found to be repugnant, that law is jettison or thrown away.

 In the case of Edet V Essien, a man pay the diary of his wife and after few years, she left him without paying back his dowry, she  later remarried another man and gave birth to 3 children in her new home however, forgotten to pay back x-husband’s dowry, the first husband went to her new home and kidnap the children and claim that where a woman received a dowry from a man, she must pay back if she’s leaving, otherwise, all the children of her subsequent marriage or marriages remain his. In this case, the court held that even if such a custom exist, it is definitely repugnant to natural justice, equity and good conscience as it will deprive children of their natural parent.

 Incompatibility Test   

This test require that a customary law must not be contrary to any written law i.e. it must not go against the provision of any written law thus in the case of Guri V Hadeja, native authority in this case, a particular Maliki principle of law (Sharia Law) which prevents a person who has been cut red handed during the course of Hiraba (arm robbery) is not entitle to defence himself. He shall only be sentence and punished. In the case, it was decided that if the Maliki school of thought is repugnant to mutual justice, equity and good conscience. It is also incompatible with the constitution of Federal Republic of Nigeria because under section 36 of 1999 constitution, a person who is charge with the commission of a crime is entitle to defend himself either by his own self or by a legal representative of his own choice.

           In the case of Ade V Inusa, in this case, a man who as a Muslim left a will giving half of his property to his non-Muslim children. The matter went to court. The Muslim children claim that a Muslim under Sharia is allowed to give 1/3 of his property as part of a will. It was held that, that particular Sharia principle is incompatible with the Will’s act because under the Will’s act, one is allowed to give his entire property to anybody of his choice.

 Public Policy Test

Public policy here is seen as a general idea or standard of behaviour, anything that goes against such standard of behaviour is consider contrary to public policy.

 In the case of Cole V Akinyele, a particular Yoruba custom provide that where a father accept the paternity of his illegitimate child, the child shall be able to inherit his father alongside his legitimate children.

          The court held that, it is not only repugnant; it is also contrary to public policy because it will promote sexual promiscuity and the men will refuse to marry.

 Common Law:

 This owns it existence to the decision of judges. It grew as a result of decisions handed down by the courts as judicial precedence. As an invention of common law, once a higher court (e.g. Supreme Court) passes a decision on a matter of law, it becomes binding on the whole courts in the land until it is changed by the legislative arms of the government.

LEGISLATIONS

Local Legislation

This simply means indigenous law. They are also written law that have been past by either the federal Government of Nigeria or the state or the Local Government. They are called differently in accordance with the type of regime that past them and the tier of government that past them.

 A decree is a law pass by a federal military government under military regime while an edict is a law passed by a state military government.

Under Democracy, a law passed by the Federal legislature is called an Act whereas law pass by the state house of assembly is called a Law. In both the military regime and under democracy, the law passed by Local Government is call bye-law.

RULE OF INTERPRETATION

          In the process of carrying out its duties given to it, the judiciary or court has developed rules, principles, way or manner of giving meaning to the law passed by the legislature.

Some of the rules are;

a)                Literal rule of interpretation

b)                Golden rule of interpretation

c)                Mischief rule of interpretation

d)                Ejus demgeneris  (meaning in the same class)

 Literal Rule of interpretation stipulated that in reading legislation, it is good practice for the court to stick to the ordinary dictionary definition of words without more. An example of where the court used the literal rule of interpretation can be found in the case between R. V Bangaza, in this case a boy committed murder at the time he was 14, when judgment was delivered five years later he was 19. A section of the criminal code provided that “where a person is found guilty of the commission of the offence of murder, he shall not be sentence to death unless he has attained the age of 18.” In interpreting this section, the court interpreted the relevant age to be the age at the time of sentencing by given the phrase “He shall not be sentence unless” the ordinary dictionary definition.

 NB:   You are to read explanatory note on the other rules of interpretation.

 LAW OF CONTRACT

A contract is a legally binding exchange of promises or an agreement between parties that the law will enforce. In other words, a contract is an agreement between two or more persons which creates an obligation to do or not to do a particular thing. It is note worthy to state here that almost everyone makes contracts everyday sometimes written contracts are required for such transaction as the purchase of land or house. However, most contracts can be and are made orally, e.g. the purchase of books, groceries cloth, food etc.

 Note, that there are three key elements of contract, these are;

 a.                Offer and acceptance

b.                Consideration

c.                 An intention to create legal relations

 One of the most famous cases on forming a contract is the case of CARLIL V. CARBOLIC SMOKE BALL COMPANY (1893) 2  OB 256. In this case a medical fir advertised that its new produce, a smoke ball would cure people’s fly and if did not, buyers would receive $100. A woman bought the smoke ball used it and still caught the flu, when she sued the company for her money; the company argue that the advert was not to be taken as serious legally binding offer. It was merely and invitation to treat. The court held that what the company did was an invitation to treat rather it was an offer to the whole worlds and whoever bought and used the smoke ball has accepted the offer and the efforts of purchasing and using the smoke ball could be considered as a valuable consideration, thus creating a clear intention on the parties to be legally bound by the agreement.

 OFFER AND ACCEPTANCE

 This is usually seen in a bilateral contract and constitutes the two elements which signify mutual consent. However, in a unilateral contract, the offer is made by one person who usually binds himself by some promises or the other and the acceptance is done when another person takes up the offer and person the act required (see the case of CARLIL V CARBOLIC SMOKE BALL) (supra)

           Note that the most important feature of a contract is that one party makes an offer for a bargain that another accept. This can be called a “concurrence of will” or “meeting the mind” which is called a consensus ad idem.

OFFER

An offer is a proposal to do a thing or pay an amount it is the manifestation of willingness to enter into a bargain which is made as to justify another person in understanding that this assent to that bargain is invited and will conclude it. It is a promise, or a commitment to do or reframe from doing some specified thing in the future.

 OFFEROR

This is the party who makes the offer and looks for acceptance from another.

 OFFEREE

This is the person to whom an offer is made by the Offeror

 COUNTER OFFER

This is a statement by the offeree which has legal effect of rejecting the offer and of proposing a new offer to the offeror

 INVITATION TO TREAT

This is an invitation to come and make an offer most advertisements are invitation to treat, so also price tags.

 IRREVOCABLE OFFER

Is an offer which may not be withdrawn after it has been communicated without the consent of the offeree

  ACCEPTANCE

 This is the act of a person whom a thing is offered or tendered by another whereby he receives things with intention of retaining it, such intention being evidenced by sufficient act.

 It is the compliance by the offeree with terms and conditions of offer. There are different types of acceptance namely;

 Conditional Acceptance

This is a state that the offeree is willing to enter into a bargain differing in some respect from that proposed in the original offer. Essentially speaking, a conditional acceptance is in itself a counter offer

 Express Acceptance

This is an undertaking in direct and express terms to accept an offer as it is without more. It is also referred to as an absolute acceptance

 Implied Acceptance

This is an undertaking to perform as offered which is inferred from the acts of the offeree. Note that in the case of a bilateral contract, acceptance of an offer need not be expressed, but may be shown by any word or acts indicating the offerees assent to the proposed made.

 CONSIDERATION

          A consideration is the inducement to a contract it is the case, motive, price or impelling influence which induces, a contracting party, interest, profit or benefit accruing to or responsibility, given, suffered or undertaken by the other.

Note that there are three (3) rules which governs consideration:-

 i)                  Consideration must be sufficient but need not be adequate e.g. agreeing to buy a car One hundred thousand naira (N100,000) may constitute a binding contract, however, there may be instances where the consideration of party may greatly exceeds that of another party to the extent that it may be considered as insufficient consideration thus, invalid.

ii)               Consideration must not be from the past e.g. the case of EASTWOOD V KENYON (1840) 11 Ad & E438 where the guardian of a young girl raised a loan to educate the girl and to improve her marriage prospects. After the marriage, her husband promised to pay off the loan. It was held that the guardian could not enforced the promise as taking out the loan to educate the girl was a past consideration because it was completed before the husband promised to repay it

 iii)            Consideration must come from the promise (Offeree). E.g. it is good consideration to pay the Mr. a pay master of Mr. B for services rendered by Mr. B.

There are different types of considerations, some which are;

a.                Continuing Consideration:

This is a consideration which consists of acts or performance which must necessarily extend over a consideration period of time.

b.                Equitable or moral consideration

This is a consideration which no effectiveness in law but may be founded upon a moral duty

c.                 Executed or Executory Consideration:

While express consideration are those acts done or values given before or at the time of making contract executory are promises to give or do something in future

d.                Express or implied considerations

While express consideration are those which are specially stated in a deed, contract or other written agreement, implied consideration are those in fared or supposed by the law from the acts or situations of the parties

e.                 Illegal consideration

This consist of acts which if done or promise with enforced would prejudicial to public interest or contrary to law.

f.                  Legal Consideration

A consideration recognized or permitted by the law as valid and lawful consideration

INTENTION TO CREATE LEGAL RELATIONS

      In all contractual relationship there must be a clear and manifest intention by the parties to be legally bound by their acts which is the basis of the contract. This intention may be in writing or when the parties on a writing agreement to which they have appended their signature, it may order or by conduct where inference may be used to certain the intention of the party.

      Note that there is a presumption in all contract agreement that parties intend to be bound (unless they expressly states otherwise) note further that though intention to create legal relation can safely be assumed to exist in most agreement this is not so with Domestic Agreement. Domestic agreement is considered to unenforceable on the basis of public policy e.g. in the instance of agreements between children and parents.

 In the case of BALFOUR V BALFOUR (1999) 2 KB571. In this case, Mr. Balfour using contract like term agreed to give his wife $30 a month as maintenance while he was living in Ceylon (Sri Lanka) once he left, they separated and Mr. Balfour stopped payments. Mrs. Balfour brought an action to enforce the payments. The court held that there was no enforceable agreement as there was not enough evidence to suggest that they were intending to be legally bound by the promise.

 VITIATING ELEMENTS OF CONTRACT

          A contract may depending on the circumstance of each case be either “void” valuable or unenforceable. While voidness implied that a contract never cam to existence, voidability implies that one or both parties may declare a contract ineffective at their wish and unenforceability implies that neither party may have recourse to court for remedy.

 Some of the elements in a contract that can vitiate contract are;

 MISREPRESENTATION

This means a false statement of fact made by one party to another and has the effect of inducing that party into a contract e.g. A false statement by a seller of goods regarding the quality or nature of the product that the seller has constitute misrepresentation can be conduct e.g., where a person present a thing for sale and allow the customer to assume that it is new and pay for a new product when the product is actually hand or (used)

 MISTAKE

A mistake is an incorrect understanding by one or more parties to a contract and may be used as ground to invalidate the agreement. There are 3 identifiable types of mistakes in contract, thus;

 UNILATERAL MISTAKES

This is where only one party to a contract is mistaken as to terms or subject matter. The mistake may be in the quality, quantity or type of goods and it may be in the identity of the contracting party.

 MUTUAL MISTAKES

This is when both parties to a contract are mistaken as to the terms each believes they are contracting to something different.

 COMMON MISTAKE

This is where both parties hold the same mistake belief of fact while is so fundamental as to render the contract void.

 DURESS AND UNDUE INFLUENCE

Duress has been defined as a “threat of harm made to compel a person to do something against his or her will or judgment especially a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without volition. In the case of BARTON V ARMSTRONG (1979) 2 WLR 562 Armstrong threatened to kill Barton if he did not sign a contract so the court set the contract aside, since it is enough if the party wishing to set aside the contract proves that a threat was made him.

 Undue influence, involves one person taking advantage of a position of power over another person. The law presumes that certain classes of special relationship such as between parent and child, solicitor and client, there will be a special risk of one party unduly influencing their conduct and motive for contracting.

 INCAPACITY

Sometimes, the capacity of either natural or artificial persons to either enforce contracts, or have contract enforced against them is restricted e.g. Infants mentally incapacities persons, due to disability or drunkenness. Thus, when the law links or bars person from engaging in specified activities, any agreements or contracts to do so are either avoidable or void.

 ILLEGAL CONTRACT

a contract is void if it is based on an illegal or contrary to public policy. In the case of ROYAL BANK OF CANADA V NEWELL a woman forged her husband signature on 40 cheques, totally $580000 dollars to perfect her from prosecuting, her husband signed a letter to intent prepared by the bank which he agreed to assume “all liability and responsibility” for the forged cheques. However, the agreement was said to be unenforceable because of its essential goal was to stifle criminal prosecution, thus the contract is illegal.

 REMEDIES TO BREACH OF CONTRACT

A breach of contract is a failure to perform as stated in the contract. Some of the remedies for breach of contract are;

 DAMAGES

This is a pecuniary compensation or indemnity which may be recovered in the courts by any person who has suffered any loss, detriment or injury, whether to his person, property or rights through the unlawful act or omission or negligence of another. The several types of damages that can be awarded to an offended party by the courts; these may include;

i)                  Actual Damages: - These are amounts of money awarded to a complainant (who in the case of contract may be offeror or offeree) in compensation of his actual and real loss.

ii)               Compensatory Damages: These are damages awarded to a complainant to the extent that will compensate him for loss he incurred. This is synonymous to actual damages.

iii)            Consequential Damages: These are damages resulting from a breach of contract by a party to the contract which the party at the time of contracting had reason to know will be resulting from the breach.

iv)             Exemplary Damages: These are damages awarded to the plaintiff over and above his loss where the breach to the contract is aggravated by some extenuating circumstance such as fraud. Wicked conduct etc. and which Plaintiff claims to punish the Defendant or to set an example of him for similar wrong does, thus this type of damage is often referred to as vindictive damages.

v)                General Damages: This are damages that itself implies or presumes to have accrued from the wrong complained of, for the reason that they are its immediate, direct and approximate result or such as necessarily results from the breach.

vi)             Nominal Damages: are damages that results in a trifling sum awarded to the plaintiff, where there is no substantial loss or injury to be compensated, but the law will still recognized a technical reason for the award.

vii)          Pecuniary Damages: These are damages that can be estimated and compensated in money usually granted in cases of such loss, deprivation or injury as can be made subject of calculation and of compensation in money.

 SPECIFICATION PERFORMANCE  

In contracts, there may be circumstance in which it would be unjust to permit the defaulting party to simply buy out the injured party with damages in such circumstances the court will normally give an ordered for specific performance in order the court will force the defaulting party to carry out this end of the contract and do what is required of him under the contract e.g. where an art collector purchases a rare painting and the vendor refuses to deliver, the court may order the delivery of the painting as remedy thus, force the defaulting party to perform his part of the contract.

 INJUNCTION

          This is usually constitute an order of court forcing the will be defaulting to refrain from doing something that would breach a contract. Usually, injunctions are mandatory in nature and may required the defaulting party to

 a)                To do some positive act or particular things that may sustain a contract

b)                Prohibits him from refusing (or persisting in a refusal) to do or permit some act to which the other party has a right under the contract to do.

c)                Compel him to undone any act that may head to breach of a contract rather than to the environment per se, its effectiveness is limited to the resolution of what may be termed as the neighborhood environmental problems. To this extent, the common law can be said to have retained an important, albeit ancillary, function in environmental law.

  FUNDAMENTAL HUMAN RIGHTS

          The followings are list of the fundamental human rights

i.                   Right to life

ii.                Right to dignity of human persons

iii.             The right to personal liberty

iv.              The right to fair hearing

v.                 The right to private and family life

vi.              Right to freedom of thought, conscience and religion

vii.           Right to freedom of expression and the press

viii.        Right to peaceful assembly and association

ix.              Right to freedom of movement

x.                 Right to freedom from discrimination

xi.              Right to acquire and own immovable property anywhere in Nigeria

xii.            Right against compulsory acquisition of immovable property.

THE RULE OF LAW

 The rule of law upheld

1)   That  every person is equal before the law

2)   That  all laws are the same

3)   The exclusion of arbitrariness

4)   No one should be punished outside the law

5)   There should be no undue privilege or discrimination

6)   Only court of law must resolve dispute

7)   All government activities must be regulated by law

The Twin Principle of Natural Justice

The two terms used in explaining this principle are

i)                  Audi Alterem Partem: - this means that who ever decides a matter should hear the parties to the dispute.

ii)               Nemo Judex in Causasua: - Which means that a person should not be a judge in his own cause. That is freedom from bias.

 CONTINUATION…

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