TOPIC 1

SOURCES OF LAW
Sources of law simply means the origin, the basis and authoritative platform upon and from
which any law or laws is or are derived from. In another way, it is the anchor upon which any
law stands. A source of law gives any law its legitimacy and authority.
In Nigeria, sources of law can be broadly categorized into three (3).
They are:
1. Historical Sources
These are sources of law which evolved over time. In most cases, they are named after
either a person or event in history. For example the Common Law, Equity, Received English
Law and Statutes of General Application.
2. Institutional Sources
Here, laws trace their roots to a particular institution or body charged with the responsibility
of making laws. Law in this sense is a product of such institution or body. For example, a
Law is a product of a State House of Assembly while an Act is a product the National
Assembly.
Statutes enacted during the military era in Nigeria are called Edicts (State) and Decrees
(Federal). With the democratic dispensation, such Edicts and Decrees are now cited as
Laws and Acts. See section 315 of the 1999 Constitution of the Federal Republic of Nigeria
(as amended) (referred to as the "1999 Constitution"). For example the Plateau State Local
Government Law, 2017; the Criminal Code Law of Lagos State 2011 etc.

3. Compendium Sources
In this category, laws are sourced from a compilation, list or concordance of similar or
different laws. Such statutes are usually collated together in one or more volumes. A very
good example of this is the Laws of the Federal of Nigeria (LFN) 2004 and the Laws of
Northern Nigeria, 1963. The laws therein are listed alphabetically and in chapters.
Thus, we have the Company and Allied Matters Act, cap. C20, LFN 2004, the Armed Forces
Act, cap. A20 LFN, 2004, Arbitration and Conciliation Act, cap. A18 LFN, 2004.

CATEGORIES OF SOURCES OF LAW

They are two categories of sources of law:
1. Primary sources
2. Secondary sources
1. PRIMARY SOURCES
They are called primary sources because they are the major or main sources of law in
Nigeria. They are authoritative and take prominent status.
 primary sources of law, that is

They are further sub-divided into two (2):

1. Legislation
2. Judicial precedent
a. LEGISLATION
It is a formal statement, pronouncement or enactment by the legislature.
Section 4 of the 1999 Constitution provides for legislative powers.
Section 4(1) of the 1999 Constitution states that legislative powers of the Federation shall be
vested in the National Assembly while section 4(2) of the 1999 Constitution, provides for the
legislative competence of the National Assembly.
In this regard, the National Assembly makes Acts on all matters and items contained in the
Exclusive Legislative List on Part I of the Second Schedule to the 1999 Constitution. Further,
items within the legislative competence of the National Assembly is outside the competence
of a State House of Assembly (see section 4(3) of the 1999 Constitution).
For the legislative powers of a State House of Assembly, section 4(6) of the 1999
Constitution covers same. The legislative competence of a State House of Assembly is
captured in section 4(7) of the 1999 Constitution which refers to the Concurrent List in Part Il
of the Second Schedule to the 1999 Constitution and in any other matter not contained in
the Exclusive Legislative List.

It is important to note the scope of exercise of legislative powers based on legislative

competence. Any powers exercised outside legislative competence is held void by the
courts. In GAD V. MALE (2010) 7
NWLR (PT. 1193) 225, the Supreme Court in examining section 4(5)
1999 Constitution of the Federal Republic of Nigeria (as amended), held that, validly
If any law enacted by the House of Assembly of a State is inconsistent with any law validly
made by the National Assembly, the law made by the National Assembly shall prevail and
that other law shall to the extent of the inconsistency be void.
Similarly, in OSUN STATE INDEPENDENT ELECTORAL COMMISSION & ANOR. V.
ACTION CONGRESS OF NIGERIA & 2 ORS. (2010) 19 NWLR (1226) 273, the Supreme
Court also had cause to consider section 4(5) of the 1999 Constitution and applied the
doctrine of "covering the field." This doctrine states that where a federal legislation is
enacted on a subject matter, a federating state cannot enact a legislation on the same
subject matter which is in conflict or inconsistent with the provisions of the federal legislation.
Where such inconsistency exists, the federal legislation prevails and the state legislation is
void to the extent of the inconsistency.
Another case in point which buttresses this provision of the Constitution is A.G. ABIA STATE
V. A.G. FEDERATION & 35 ORS. (2002) 6 NWLR (PT. 763) 264. In that case, the Supreme
Court held inter alia that the National Assembly does not have the power to enact laws
affecting Local Government affairs in Nigeria. Facts leading to the latter case were that the
Federal Government had enacted the Electoral Act, 2001, which empowered the
Independent National Electoral Commission (INEC) to conduct elections throughout the
federation including Local Governments. The Abia State government challenged this
legislation in Court basing its argument on section 7 of the 1999 Constitution which places
the powers of running the affairs of the Local Government system in Nigeria on the State
Governments. The Supreme Court agreed with the Abia State Government and declared the
provisions in the Electoral Act, 2001 relating to Local Governments as null and void. This is
the extant position.
Advantages of Legislation
1. It is identifiable. Reference can be easily had to legislations.
2. It is dynamic I.e. it can be amended.
3. It reflects the desires and aspirations of the people since it is a product of their
representatives. or, its supposed to
Disadvantages of Legislation
1. Law making process is cumbersome. The stages require a lot of time.
2. Unpopular laws are enacted due to political vested interests.
3. Obsolete laws remain in force based on section 315 of the 1999
Constitution.

b. JUDICIAL PRECEDENT
This is the decision or pronouncement by a court of competent jurisdiction on a dispute
brought before it. In Nigeria, we employ the adversarial method of dispute resolution. This
requires the presentation or prosecution of cases before a Judge who then assesses the
case of the parties and gives a decision.
There is a contention as to whether judges make laws. In reality, judges do not make laws.
They rather pronounce upon laws. In the words of Hon. Justice Alagoa (formerly of the
Federal High Court Jos Division),
expound- explain
"Judges are not to expand the law; they are to expound the law." This is very apt. In
reaching a decision, a judge may put into consideration several factors in stating how the law
applies to the peculiar set of facts before him but cannot use the facts to restate the law.
In Magit v. University of Agriculture Makurdi & Ors. (2005) 19 NWLR (pt.
959) 211, the Supreme Court, per Pats-Acholonu, JSC, held as follows:
It is said that the function of the court is to interpret laws made by the legislature and not to
make laws. In theory that is so. But it must equally be admitted that Judges are not robots
(or Zombies) who have no mind of their own except to follow precedents...As the society is
 LEFT OFF
externally dynamic and with fast changing nature of things in the ever changing world and
their attendant complexities, the court should, empirically speaking, situate its decisions on
realistic premise regard being had to society's construct and understanding of issues that
affect the development of jurisprudence.
In the case of ABlOYE & 4 ORS VS. SA'ADU YAKUBU & 5 ORS (2001)
FWLR (PT. 83) 2212, the Court held that, it is not a derogation of the powers of Judges if
they limit themselves to the duty of the interpretation of the Act. What the law ought to be is
outside the function of the Judges.
What the law is, is found in their judgments. See p.296, paras. D-G.
In the earlier case of Esso West Africa Inc. v. T. Oyegbola (1969) NSCC 350 at 354, the
Supreme Court had stated thus:
The law cannot be and is not ignorant of modern business methods and must not shut its
eyes on the mysteries of the computer. In modern times reproduction or inscriptions on
ledgers or other documents by mechanical process are common place...
A community consideration of the two foregone cases captures the mind of the Court when it
comes to its function of interpretation of laws. On one hand the Court is not to shy away from
modern or contemporary happenings and on other hand it must not go outside the provisions
of the law. In balancing this two positions, the Courts are saddled with an onerous task.
The act of going outside the provisions of a law in determining a case is known as judicial
activism. Under the Common Law tradition, judicial activism is not allowed. This is because
the common law tradition is highly conservative. A judge is to constrain himself to the law
and set of facts before him.
However, the erudite Lord Denning, M.R. in shifting from this Common Law position as to
what constitutes proper system of work in ascertaining the duty of care incumbent on an
employer held in Qualcast (Wolverhampton) Ltd. V. Haynes (1959) AC 743, that:
What is a proper system of work is a matter for evidence, not for books. It changes as the
conditions of work change. The standard goes up as men become wiser. It does not stand
still as the law sometimes does.
Also in departing from the Common Law position that injunctions cannot be granted to
restrain an employer from terminating the employment of an employee as espoused in the
concept that the Court will not impose a willing employee on an unwilling master, the
irrepressible Lord Denning M.R. in HILL V. C.A PARSONS & CO. LTD. (1972) / CH. 305
held thus, "It may be said that by granting an injunction in such a case, the court is indirectly
enforcing specially a contract for personal service. So be it."
The argument against judicial activism is hinged on the fact that it conflicts with the doctrine
of separation of powers as enshrined in sections 4, 5 and 6 of the 1999 Constitution. It is
argued that if judges were to make laws then the role of the legislature is stifled and law
making becomes duplicated.
It is our view that the arguments for and against judicial activism notwithstanding, the role of
judges in influencing the enactment of good and relevant laws cannot be over-emphasized.
It is noteworthy that this was what the Supreme Court did in B.P.E V. N.U.E.E (2010) 7
NWLR (PT. 1194) 538 when in its wisdom it held as follows:
..It means therefore that by Decree No. 47 of 1992 arrogating to the National Industrial Court
or superior court of record does not by that token make the National Industrial Court a
superior court of record without due regard to amendment of the provision of section 6 (3)
and (5) of the 1999 Constitution which listed the only superior courts of record recognised
and known to the 1999 Constitution and the list does not include the National Industrial
Court. Until the Constitution is amended it remains a subordinate court to the High Court.
The implication of conferring exclusive jurisdiction in trade disputes on the National Industrial
Court is to exclude the wide powers of the State High Court thus causing the conflict
between Decree No. 47 and section 272 of the 1999 of the 1999 Constitution and any
inconsistency with section 272 of the 1999 Constitution in that regard is void to the extent of
the inconsistency. Consequently, Decree No. 47 is null and void being inconsistent with
section 272 of the
1999 Constitution. Underlining supplied. (See p. 570, paras. C-F, pp.571-572, paras. F-E)
In the latter case, the Supreme Court was called upon to determine inter alia the jurisdiction
of the National Industrial Court viz-a-viz the State High Court or Federal High Court. When
sections 6(5) and 272 of the
1999 Constitution were interpreted by the Supreme, it reached the decision that the National
Industrial Court was inferior to a State High Court and a Federal High Court. The Supreme
Court did not stop at that but gave a lee way for the problem to be cured when it stated that
"Until the Constitution is amended...
This statement by the Supreme Court served as a trigger to the leadership of the National
Industrial Court led by its able and revolutionary Hon. Justice B.A. Adejumo, OF, who
agitated for the amendment of the Constitution to accommodate the National Industrial Court
of Nigeria. This found the acceptance of the National Assembly and the Third Alteration Act,
2010 was enacted and signed on 74 March, 2011.
We can safely say that the Third Alteration Act, 2010 is a product of judicial influence and
collaborative governance between the judiciary and the legislature.

Judicial precedent thrives on two pillars:

1. An acceptable and recognized hierarchy of courts, otherwise known as stare decisis.
Section 6 of the 1999 Constitution captures courts known as superior courts of record
 (see section 6(5) 1999
Constitution). The doctrine of stare decisis stipulates that the decisions of superior
courts are binding on lower courts. For instance, the decision of the Supreme Court
is binding on all courts in Nigeria.
Thus in Gebi v. Dahiru (2012) 1 NWLR (PT. 1282) 560, the Court of Appeal, Jos
Division held that the term "stare decisis" is a Latin derivative denoting "relenting to
stand by things decided." The doctrine of precedent (stare decisis) makes it
imperative for an inferior court to follow earlier judicial pronouncements (decisions) of
superior courts of record when the same points arise again in litigation.
2. Accessible and reliable law reporting system. Law reporting refers to the process of
documenting essential court decisions on different aspects of the law as decided by
appellate courts especially the Court of Appeal and the Supreme Court. Law
reporting ensures that decisions of superior courts of record are accessible and
referenced in other court proceedings. Thus, the popular saying, "lawyers depend on
dead men's brains." The latter statement denotes the fact that lawyers draw
references from decided cases which in most cases are from judges who are not
alive.

It is worthy of note that it is not all aspects of the decisions of a superior court of record that
is used in subsequent cases as binding.
This brings up the concepts of ratio decidendi and biter dictum.
Ratio decidendi is defined by the Black's Law Dictionary, gin edition at page 1376 as "The
principle or rule on which a court's decision is founded." Simply put, it means the reason for
a decision given by a judge.
In NWADIANI V. UBOH (2010) 12 NWLR (PT. 1209) 591, the Supreme Court held that the
ratio decidendi of a case is the reason for the decision, the principle of the decision.
Additionally, the Supreme Court in CYRIL O. OSAKUE V.
FEDERAL COLLEGE OF EDUCATION ASABA (2010) 10
NWLR (PT. 1201) 1, held that ratio decidendi has the effect of binding inferior courts and not
biter dictum.
ii.
Obiter dictum is defined by the Black's Law Dictionary, gin edition at page 1177 as "A judicial
comment made while delivering a judicial opinion, but one that is unnecessary to the
decision in the case and therefore not precedential." It is means a comment or statement
made by a judge passively, which is not a ground of the decision.
Thus in NWADIANI V. UBOH (supra), the Supreme Court defined obiter dictum as a Latin
phrase meaning "something said in passing" and a remark made by a judge as an opinion in
• his decision upon a cause "by the way." Similarly in NATIONAL DEMOCRATIC PARTY
(NDP) V. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2013) 6 NWLR
(PT. 1350)
392, the Supreme Court held that, obiter dictum constitutes words of opinion entirely
unnecessary for the decision of the case; a remark made in passing incidentally or
collaterally, and not directly upon the question before the court. Such is not binding as
precedent.
NOTE:
While ratio decidendi is appealable, obiter dictum is not. In other words, the reason of a
court's decision is subject to appeal whereas a comment made by a judge in passing or
passively is not subject to appeal.

Advantages of Judicial Precedent

1. It sets a template for subsequent cases with similar facts.
2. It enriches and develops the legal system.
3. It elevates the role of the judiciary.

Disadvantages of Judicial Precedent

1. When followed sheepishly or slavishly, it leads to injustice.
2. It hampers judicial creativity.
3. It may discourage legal research and development of the law.

3. SECONDARY SOURCES
These are those sources of law which are supportive, explanatory or descriptive of primary
sources of law. They are basically persuasive in nature and not binding. They are usually
employed either where primary sources of law are silent or non-existent; they are a back up
to primary sources.
Secondary sources include:
-Books/monographs
-Legal journals
-Subsidiary legislations
-Legal encyclopedia/dictionaries
-Customs

Books/Monographs
These are works and writings of authors on legal issues. A monograph is a work based on a
sole or thematic area of law e.g. The Law and Practice of the National Industrial Court of
Nigeria by Bamidele Aturu.

Legal Journals
They are a compilation of legal articles (often short and precise) on topical and
contemporary legal issues and happenings. Legal journals are also used by authors to
review and comment on statutes, books, cases, government policies etc.

Subsidiary Legislation
These are rules and regulations or bye-laws made by an administrative body or person
created by statutes. It is also called "Delegated Legislation." For a subsidiary legislation to
be valid, it must be in consonance or agreement with the parent statute which created the
body or person seeking to make such subsidiary legislation.

Legal Encyclopedia and dictionaries

They are sources of law which help in providing definitions and clarity on words, phrases or
Latin maxims. They are used mostly as a quick reference material. For instance, the Black's
Law Dictionary by Garner,
B.A. et al and The Nigerian Law Dictionary by Nchi, S.l. etc.
NOTE:
1. The sources listed in i-iv above are opinions, perspectives and views held by
individuals on legal issues and happenings.
2. They are also used as reference materials.
3. They are regarded as repositories of knowledge i.e. reservoir or storage of
knowledge.
4. They are varied because of differences in opinions and perspectives.

Customs
Statutory definition:
Section 258(1) of the Evidence Act, 2011 defines 'custom' as "a rule which, in a particular
district, has, from long usage, obtained the force of law."

Some scholarly definitions:

Suleiman Ismaila chi in The Nigerian Law Dictionary, new ed. (Keffi:
Greenworld Publishing Co. Ltd. 2010) p. 168, defines custom as, "A rule of conduct of long
usage considered as obligatory by those who practice it or in the society in which it is widely
practiced." He sees 'customary law' as
"Customs generally accepted as legally binding by a community...
Custom or customary law is defined by Prof. Teslim Elias as "A body of customs accepted
by members of a community as binding upon them."
Prof. Akintunde Obilade defines customary law as "Customary law consists of customs
accepted by members of a community."
Niki Tobi, JSC defines customary law as, "The customs, rules and traditions which govern
the relationship of members of a community.”

Prof. A. D. Badaiki posits that, "Customary law is law which is generated by custom. The
customary law of a community is a body of customs and traditions that regulate. various
kinds of relationships between members of a community."

Some judicial definitions:

In the case of Oyewunmi V. Ogunesan (1990) 3 NWLR (pt. 182) 207, per Obaseki, JSC
defined customary law as,
The organic or living law of the indigenous people of Nigeria regulating their lives and
transactions. It is organic in that it is not static, is regulatory in that it controls the lives and
transactions of the community subject to it. It is said that custom is the mirror of the culture of
the people. I would say that customary law goes further to import justice to the lives of those
subject to it.

In Owoniyi v. Omotosho (1961) ALL NLR 304, Bairamian FJ, held that, customary law is "A
mirror of accepted usage, among a given people."
Customary laws therefore, are rules which are accepted as binding and enforceable by a
particular community of people. Customs acquire the force of law upon satisfying certain
conditions.

In Aku v. Aneku (1991) 8 NWLR (PT. 208) 280 at 292, Ndoma-Egba, JCA held that,
The unrecorded tradition and history of the people, practiced from the dim past and which
has 'grown' with the 'growth' of the people to stability and eventually becomes an intrinsic
part of their culture. It is a usage or practice of the people which by common adoption and
acquiescence and by long and unvarying habit has become compulsory and has acquired
the force of law with respect to the place or the subject matter to which it relates.
.
Simply put therefore, customary law is any rule practiced by a particular people who regard
same as binding on them and which has acquired the force of law.

NOTE:
A Custom has the rare privilege of transiting from a secondary source of law to a primary
source of law when sections 16, 17 and 18 of the Evidence Act come into play. Therefore, a
custom becomes a primary source of law when it is:
1. Judicially noticed once by a superior Court of record (sections
16(1) & 17 Evidence Act, 2011);

2. Proved in court (section 18 (1) Evidence Act, 2011);

3. Not contrary to public policy (section 18(2) Evidence Act, 2011); and
4. Not repugnant to natural justice, equity and good conscience (section 18(2) Evidence
Act, 2011).
5.
It is pertinent to note that a secondary source of law cannot supersede a primary of law
except in the case of a custom which has either been proved or judicially noticed. Thus, in
the case of UDOM GABRIEL EMMANUEL V. UMANA OKON UMAMA & 5 ORS. (2016) 2
S.C.N.J.
571, the Supreme Court held as follows:

The lower court's authority for this prospective prescription on the lex ferenda (that is, the
law as it ought to be) as opposed to the lex lata (that is, the law which is, currently in force as
interpreted by this court) is the opinion of a Lagos-based Lawyer, Akintayo /wilade,
"Required Proof for Criminal Allegations in Election Petitions: A Critique" in The Nation
Newspaper of
July 16, 2013 (available at http://www.thenationonline.net/required-proof-for-criminal-
allegations-in-election-petition-a-critique). In one word, the lower court, relying on an opinion
of a Newspaper article, purported to abrogate section 135(1) Evidence Act, 2011 by judicial
fiat...In my humble view, it is difficult to see how the lower court could have, legitimately,
wished away the position of this court which, interpreting the above section, has maintained
that a Petitioner who makes an allegation of the commission of a crime the basis of
challenging the election of a candidate who was returned, must prove the allegation beyond
reasonable doubt. See pp. 628-629.
Advantages of Secondary Sources of Law
1. They assist in definitions and explanation of primary sources e.g. where statutes are
silent.
2. They enhance legal research and development of the law.
3. Customs when proven to be valid or legislated upon, take the force of law thereby
achieving the objectives of law in the society.

Disadvantages of Secondary Sources of law

1. They are views, perspectives and opinions held by writers thereby subject to
personal sentiments.
2. They are only persuasive on the Courts.
3. They could be conflicting opinions among writers on legal issues thereby making
them inconsistent. For example the definition of law.

NOTE:
1. Secondary sources though persuasive assist lawyers and judges in explaining
primary sources.
2. When primary sources are silent or vague, secondary sources like law dictionaries
are called in aid.
1. The categorization of law into primary and secondary sources helps a lawyer in
research and advocacy. The lawyer is able to know how best to apply both sources
of law.