FACULTY OF LAW

RIVERS STATE UNIVEERSITY OF SCIENCE AND TECHNOLOGY, NKPOLU-

1See Asein, op cit . 100, Note that, at independence, the Nigerian legislature repealed some of the English laws

applicable in Nigeria at the time. See Niki Tobi, op cit. . 44(footnote 105). 3
2. Now Cap I24, LFN 2004
INTRODUCTION

The term sources of law among others refers to the fountain of authorities of a rule of law i.e. the
origin from which a legal rule derives its authorities. The places where laws can be found, where
they originate or where they are explained . It is the means through which a rule form a part of
the body of law. In this sense, a source of law, is a legal source. These ssources are guides
which not only provide assistance in facilitating the lawyer’s knowledge of the law but also
leads to ease of reference, certainty , enhancing social cohesion and historical evidence.

One of the major sources of the Nigerian laws is the Received English laws of which Common
law and Equity play a significant part. Other sources include legislations, Case laws, Customary
laws and Islamic laws. However, for relevance to this topic, our focus shall be restricted to
common law and equity and their importance in defining the history of the Nigerian legal
system.
Apart from the laws which were extended to the Nigerian jurisdiction from Britain, there were
also British laws which were received into the Nigerian legal system by Nigerian law, and these
were, the Common Law, doctrines of equity, and statutes of general application in England on
January 1st 1900. These laws were applicable in Nigeria as a result of Nigerian legislation to
that effect, and the different components of this category of law will be discussed under this
heading. Section 45(1) of the Interpretation Act 2 provides that:

Subject to the provisions of this section and except in so far as other provision is made by any
federal law, the common law of England and the doctrines of equity, together with the statutes of
general application that were in force in England on the 1st day of January, 1900, shall be in

1See Asein, op cit . 100, Note that, at independence, the Nigerian legislature repealed some of the English laws

applicable in Nigeria at the time. See Niki Tobi, op cit. . 44(footnote 105). 3
2. Now Cap I24, LFN 2004
The sources of Nigerian law are not wholly local by reason of our history. Following the
colonization and imposition of British rule in Nigeria between 1861 & 1914.English law was
introduced into different part of the country at different times by series of proclamation &
ordinances. In 1914 the South & Northern Protectorate were amalgamated to form the Colony,
and Protectorate of Nigeria. This Nigeria as a political entity came to bear on this date and the
Supreme Court ordinance was enacted to supersede all other ordinance and proclamation in
Nigeria as an entity and survived until October 1st 1954. Section 14 of the Supreme Court
Ordinance provide thus, "..Subject to the terms of these or any ordinance, the common law, the
equity and statutes of general application which were in force doctrine of within the jurisdiction
of the court in England on Jan 1st 1900, shall be in force within the jurisdiction of those
courts..” After Nigeria became a federation in 1955, comprising of the new regions and a Federal
Capital Territory of Lagos and much later the Mid Western Region, which was created in 1963,
the above provision was repealed, and re enacted in the High Court Laws in the respective
regions. The same was enacted in the Interpretation Act of 1960. See section 45. Since then, the
English Laws became one of the sources of Nigeria Law

In the British-colonized world, comprising several countries in Africa, Asia, the Caribbean and
North America, the legal system has its foundation in the English Common Law, which was
received into the budding legal systems of the colonies. The Common Law is therefore an
important source of law in many parts of the world, although its significance in its original form
has been greatly diminished by the development of independent sources in these countries.
Nevertheless, the legal systems of these countries are usually based on general rules developed
by the Common Law system of which Nigeria is an example

1See Asein, op cit . 100, Note that, at independence, the Nigerian legislature repealed some of the English laws

applicable in Nigeria at the time. See Niki Tobi, op cit. . 44(footnote 105). 3
2. Now Cap I24, LFN 2004
The Received English Laws are 1. The common law,
2. The doctrine of equity.
3. The Statutes of General Application:- e.g Conveyance Act 1881, Land Transfer Act 1897, The
Will Act 1837 etc.

COMMON LAW

The common law as a source of law, actually refers to the law developed by the judges of the
old common law courts of England, namely the King’s Bench, i.e." the court of common pleas”
and the court of exchequers from the custom of the various English communities. There was
originally several system of law known as the common law of England, since it’s almost entirely
a development of judges, its principles are to be found in previously decided cases, as it cannot
be found in a common code. The common law been a system of rule, extractable from previous
decision, was held together and developed by the doctrine of stare decisis i e. standing by
previous decisions. Thus when a judge decides a now case brought before it, the new rule
declared in that case was subsequently followed, by the other judges in subsequent cases with
similar facts and circumstances. In later times, the law crystallized into a form known as the
binding force of judicial precedents and judges felt to follow previous judicial decision instead of
merely looking for them as mere guidance by these means, the common law earned the status of
a system. In summary, the common law, is a judges system of making laws out of the local
custom, of the people universalized by the common law courts.

EQUITY AND ITS ORIGIN

1See Asein, op cit . 100, Note that, at independence, the Nigerian legislature repealed some of the English laws

applicable in Nigeria at the time. See Niki Tobi, op cit. . 44(footnote 105). 3
2. Now Cap I24, LFN 2004
In the general juristic sense, may refer to the power to meet the moral standard of justice in a
particular sense by a tribunal having discretion to mitigate the rigidity of the application of strict
rules of laws, so as to adapt the relief to circumstances of the particular case, without actually
antagonizing the common law itself. In the technical judicial sense, equity means the law
developed, by the old body of chancery, as a result of the rigidity of the common law.

When the rules of Common Law became established, as well as the attendant procedures for
applying those rules in court, many of the citizens came to the King with complaints about
hardships suffered because of the rigidity of the Common Law, so the King appointed the
Chancellor to attend to such cases. Soon, a court of Chancery was established to hear these
cases,and with time the doctrines of equity were developed, as the court relied on the reason and
good judgment of its judges to handle cases that came before them, and the judges acted with
considerable discretion
At early times (about two centuries ago) Law & Ethics (custom) were referred to as inseparable.
Thus equity in the general juristic sense formed part of the law. At that time, the power of courts
to dispense justice was directly linked with the royal courts. In other to bring an action in one of
the kings court, the aggrieved person will have to obtain from the chancery a “writ” (it was a
sealed letter written in the name of the king’s court and it ordered some person/ defendant to do
whatever the writ specified). It begins with a statement of the Plaintiff 's claim, which was
largely in common form and was prepared in the royal chancery and not by the Plaintiff adviser
or lawyer as it is today. Since justice was administered under wide and expensive prerogative of
the king, no citizen was denied access to court, mainly because the cause of action did not fit into
any of the existing writ. When a new cause of action arises chancery was empowered to frame a
new writ thus extending the law. Thus both the common law and equality were operated in the
early common law courts. Towards the end of the 13th century however, there was a noticeable

1See Asein, op cit . 100, Note that, at independence, the Nigerian legislature repealed some of the English laws

applicable in Nigeria at the time. See Niki Tobi, op cit. . 44(footnote 105). 3
2. Now Cap I24, LFN 2004
and remarkable change in the judicial attitude of the common law judges in the administration of
justice. The administration of the common law by judges was becoming inflexible or rigid. This
was associated to the growing powers of the parliament to make laws for the people of England.
Secondly the parliament which was empowered to make laws was offended by the chancery
issuance of writ without its approval. Furthermore there was too much emphasis on form, thus
relegating justice, where there was/were no existing remedies, writs were not used. during period
under review, the germ of positivism was rampant in England, or English jurisprudence.

The common law system has its inherent defect, and these include: (a) The writ system (b)
Procedures (c) Defenses/corruption (d) Decision of courts was becoming unenforceable (e)
Inadequate remedies For these reasons, many people who could not obtain appropriate remedy in
the common law courts started addressing their complains to the king in council. Later it was
delegated to the chancellor to oversee the complaint, but he did not follow any laid down
procedure hence the remark “equity varies with chancellors’ foot” the chancellor however
succeeded in the issuance of a decree of specific performance, injunction etc. At this stage of
development, in other to bring certainty into the system, equity began to follow the principle of
precedent in time, and like common law, it gradually developed into a well-established
reasonable and ascertainable body of principles.

RELATIONSHIP BETWEEN COMMON LAW & EQUITY

1See Asein, op cit . 100, Note that, at independence, the Nigerian legislature repealed some of the English laws

applicable in Nigeria at the time. See Niki Tobi, op cit. . 44(footnote 105). 3
2. Now Cap I24, LFN 2004
The relationship between the common law courts and the chancery was not cordial; both used
their powers to get at each other. The common law court did not allow the chancery to water
down their power and vice versa. In the Earl of oxford case 1615; Lord Coker, offered a direct
challenge to the court of chancery jurisdiction and the dispute was referred to King James 1 for
settlement. He resolves thus! “…It is former of equity by stating that where common law rules
and equitable laws are in conflicts the later taker should prevail”. Where Common Law relied on
awarding damages that were attached to the property of a defendant, equity provided remedies
that enjoined persons to act or refrain from acting, such as specific performance, rescission,
injunction, restitution, and so on. Asein lists some of the doctrines of equity, but that list is
not exhaustive 6
Thereafter the aged long conflict was resolved and cemented by the Judicature Act of 1873-75
which brought about the amalgamation of the English law courts. Since then both the common
law of England and the equitable remedies are available to a litigant under the same action.
Please note that while common law is the basic law of the land, equity operates within certain
areas of law to complement or supplement pre-existing common law rule upon the same subject.
It is thus a gloss upon the common law.

Reference

CONCLUSION

1See Asein, op cit . 100, Note that, at independence, the Nigerian legislature repealed some of the English laws

applicable in Nigeria at the time. See Niki Tobi, op cit. . 44(footnote 105). 3
2. Now Cap I24, LFN 2004
The received English law thus became one of the Nigerian sources of law through the provision
of S. 45 (2) of the Interpretation Act which makes such imperial law subject to local jurisdiction
and local circumstances. The implication of this is that once the local circumstances does not
permit the operation of a particular statutes, it will not operate in Nigeria. Local Circumstances
in this regard means that there is an existing law on the subject matter or the subject matter to
which it applies does not exist or that the factor essential to the application of an English Statute
is not present in Nigeria. Finally, the received English Statute are to be read subject to necessary
verbal alteration not affecting the substance or the purpose of the enactment. In doing this, the
Court may substitute Nigeria for England, Iyamho for Liverpool, Naira for Pounds etc.
The means that the principles of common law and equity in England are only applicable in
Nigeria provided that;
1.Such principle of common law is not in conflict with any Nigerian statute or case law on the
subject matter.

2. The jurisdiction of the relevant court permits it to apply English law, subject to the overriding
power of the court in question to ascertain the current state of such law in England

Since the British Parliament no longer makes law for Nigeria, the legislative arm of the Federal
and State Governments now have the full duty of enacting legislations to meet the needs of the
Nigerian society and to maintain parity with legal developments in other countries .Thus, many
of our local legislations in Nigeria were mainly reproductions of the relevant received English
laws (common law, equity and statutes of general application ) after which they are modified,
have been enacted locally. Examples include all Acts in the revised edition of the laws of the
Federation of Nigeria 1990 like the Evidence Act, Criminal Code Act etc

1See Asein, op cit . 100, Note that, at independence, the Nigerian legislature repealed some of the English laws

applicable in Nigeria at the time. See Niki Tobi, op cit. . 44(footnote 105). 3
2. Now Cap I24, LFN 2004