English Law

Due to Nigeria’s historical link with England, English laws form a large part of Nigerian laws. Nigeria was colonized by England and had its legal system introduced by England. Nigerian jurists in the formative period of laws were trained in the legal system and so it would be hard to suddenly change the entire system. Nigeria has retained the English laws as stated by the Supreme Court in Ibidapo v. Lufthansa Airlines. According to section 315(1) of the constitution, existing laws remain in force unless repealed or declared invalid. The laws from the English which are applicable in Nigeria are of two kinds.

Extended English law; those that apply by their own force or by imperial extension consisting mostly of statutes and subsidiary legislations.
Received English law; those which are received into Nigeria by local statutes and consists of the common law, the doctrines of equity, and statutes of general application.

Extended English Law

English laws extending to Nigeria refers to laws which were introduced into Nigeria directly by English legislation. This is different from received English law, which is introduced by Nigerian local legislation. Extended English law could either be made through statutes like Acts of the U.K. Parliament and prerogative Orders in Council by the crown for Lagos or they could be made through subsidiary legislation which includes Orders in Council made under the U.K. Acts of Parliament. The extended English laws which have force are those which were made before 1st October, 1960 when Nigeria became an independent state. Even though the queen remained the ceremonial head until 1963, legislative powers could not be exercised over Nigeria anymore. English law extending to Nigeria is subject to Nigerian legislation, limits of local jurisdiction, local circumstances and formal verbal alterations. These laws may also be repealed through local Legislation since 1960. Because legislative pronouncements after 1st October, 1960 are of no effect in Nigeria, Extended laws are not repealed in Nigeria only because they have been repealed in England after 1st October, 1960.

Recieved English Law

It is very common for legal systems of different countries to be influenced by other countries. This goes further to show the universal nature of law and the interdependence of humans and societies. These laws are laws which were applicable in England and adopted in Nigeria through local legislation. It would be erroneous to believe that the laws were received by Nigerians by popular support, but rather it was done by colonial authorities charged with making laws for Nigeria. The reception has been justified for various reasons. One of such reasons is that the customary law which was prevalent did not suit non-natives, mainly the English who were immigrating into Nigeria. Also, Customary law was inadequate for the developing business and trade and the English additionally considered English laws superior to native customary laws.

The first reception clause was contained in Ordinance No. 3 of 1863 by which it was enacted that:

All laws and statutes which were enforced within the realm of England on the 1st day of January, 1863, not being inconsistent with any ordinance in force in the Colony, or with any rule made in pursuance of any such Ordinance, should be deemed and taken to be in force in the Colony, and should be applied in the administration of justice, so far as local circumstances would permit.

Upon the enactment of the Supreme Court Ordinance of 1876, the reference date was shifted forward to 24th July, 1874 and then later to 1st January, 1900 which has been maintained till date.

The received English law exists in various forms as follows.

The Common law of England.
The Doctrines of Equity.
Statutes of general application in force in England on 1st January, 1900.

Common Law

The English common law was originally known as commune ley in Law French. It refers to the law which was created, developed and applied by the old common law courts and it was based on the custom of the region. It exists largely in an unwritten form and is judge-made.

England did not have any unified judicial system before 1066 A.D. It was after the Norman conquest in 1066 and the enthronement of William I that a somewhat organized judicial system was created. Before then, different regions of England had different customs which were applied by their native courts after being compiled by the Anglo-Saxon kings. Itinerant justices were sent out by Williams I and they administered the culture of the people and garnered more judicial power over time. They would meet at the Westminster and discuss the various customs they had encountered in their different journeys. The good customs were agreed upon and commended while the bad ones were criticized, this slowly led to the development of the English common law system.

There were three courts which administered the common law: The King’s bench (or Queen’s bench, depending on the sovereign’s gender), the court of exchequers and the court of common pleas. The King’s bench traveled around with the sovereign and exercised an exclusively criminal jurisdiction, the Court of Exchequers was to deal with revenue, while the Court of common pleas dealt with civil matters. It was necessitated by the Magna Carter 1215 that there should be fixed courts to perform the duties of itinerant justices.

Parties who wished to bring an action in the common law courts did not have automatic right, but were instead to pay a fee and come through a writ. The use of an inadequate writ could prove fatal for the action. It can be seen from these that the common law courts were rigid and more concerned with form that with the actual obtaining of justice. There was also to problem of trying to enforce judgments against more powerful members of the society. The doctrines of equity were created to solve the problems of the common law courts.

The Doctrines of Equity.

The common law proved ineffective in some ways, one of such being the rigidity of its rules. Sometimes remedies were unavailable in common law and there were no proper writs for complainants to bring their actions through. To worsen the problem, litigants were sometimes unable to enforce the judgments of the common law courts. This led to petitions being written to the crown, the fountain of justice, to exercise his prerogative. These petitions were considered by the King’s council which comprised principal members including the Chancellor who was a key member and the King’s confessor.

With time, it became customary to channel the petitions through the Chancellor and the chancellor established his own court, the Court of Chancery, which administered the doctrines of equity. The petitions usually came in the form of bills. When the Chancellor’s office received the bills, a copy would be sent to the defendant stating the action being complained of. It was usually accompanied by a sub poena to compel the defendant to appear before the court to answer to the complaint. The Chancellor would probe into the truth of the complaint with the intention to do justice and make right every wrong.

The rules of equity were initially very simple, applying to different cases in view of the Chancellor’s view of justice in the case. Since each man perceives justice differently, each Chancellor over time took different approaches to justice. Eventually equity began following the principle of precedents to create certainty. The following maxims show the philosophy of equity.

Equity acts in personam i.e. the judgement may be enforced against the person wherever he is. Ayinde v. Abimbola.
Equity does not suffer a wrong to be without remedy. Ubi jus ibi remedium; where there is a right, there is a remedy. Martins v. Martins, Alaka v. Alaka.
Equity follows the law. Chidiak v. Coker.
Equity looks to the intent rather than the form. Balogun v. Balogun.
Equity looks on that which ought to be done as done. Savage v. Sarrough.
Equity imputes intent to fulfill an obligation. Ojule v. okoya.
Equitable remedies are discretionary. Ibeziako v. Abutu.
Delay defeats equity. Craig v. Craig.
He who comes to equity must come with clean hands. Brown v. Adebanjo, Taylor v. Williams.
He who seeks equity must do equity. Cole v. Folami, Martins v. Molade.
Where there are equal equities, the law will prevail. Cave v. Cave.
Where there are equal equities, the first in time prevails. John Holt (Nig.) Ltd. v. Holt African Workers Union of Nigeria & Cameroon.
Equity, like nature, does nothing in vain.
Equality is equity. Taiwo v. Lawani.
Equity does not permit a statute to be a cloak for fraud.

It was not uncommon for disagreements to arise between common law and equity. For a while there was a power tussle which often had litigants in between. The Court of Chancery would imprison those who disobeyed its orders and the common law courts reacted by creating the writ of habeas corpus to release those detained by the court of equity. The mutual disaffection resulted in a deep conflict between Lord Ellesmere, then Chancellor, and Sir Edward Coke, Chief justice of the Common Pleas in the Earl of Oxford’s C during the reign of King James I. The King ruled in favour of equity, acting on the advice of Sir Francis Bacon, the Attorney-General who was reputed to not be on good terms with Sir Edward. The Court of Chancery was abolished under the Judicature Acts of 1873 and 1875 and both common law and equity have since been administered by the same court with equity prevailing if there is a conflict between the two.

There have been questions as to whether the limiting date of 1st January, 1900 applies to common law and doctrines of equity due to how the reception clauses are phrased for some regions. Judicial practice does not support the limitation and Nigerian courts will sometimes adopt current common law and equity practices. It is important to note that since they are both present in the form of precedents, they are only persuasive and not binding. The decisions of a foreign court cannot be binding on Nigerian courts except they were part of the Nigerian hierarchy of courts when the decision was given as with the privy council before 1963.

Statutes of General Application.

This form of received English laws refers to statutes of general application which were in force in England on the 1st January, 1900. They were to be applied by the courts. However, the Western Region is now exempted by virtue of Law of England (Application) Law of 1959. The West African Court of Appeal stated in Young v. Abina that it was not necessary for the statute to be in force in all of the United Kingdom, but it only had to be in force in England. This was reaffirmed by the federal Supreme Court in Lawal v. Younan.

Another requirement is that the statute must have been in force on the 1st January, 1900. It would not be applicable if it had been repealed in England before that date, and its repeal in England after that date does not repeal its application in Nigeria. There have been questions over what constitutes a statute of general application. In other words, what kinds of statutes may be said to be of general application in England? The reception clauses offer no help with this interpretation and the courts have been left with the duty. Osborne, C.J. tried to formulate a test for whether or not a statute was of general application in Attorney-General v. John Holt & Co.

By what courts is the statute applied in England?
To what classes of the community in England does it apply?

If on January 1, 1900, an Act of Parliament was applied by all civil or criminal courts, as the case may be, to all classes of the community, there is a strong likelihood that it qualifies as a statute of general application. On the other hand, it might be held to not be s statute of general application if it was on applied to a particular class of people or by particular courts.

The tests given are only to provide a rough guide as statutes applying to only one court in England or to a particular class of people have sometimes been applicable in Nigeria. This problem is less troublesome as local statutes have replaced most statutes of general application.

Application of statutes of general application.

Once it has been established that a statute is one of general application, there are other steps to be taken for a court to apply it. Firstly, it may only be applied as far as local jurisdiction and circumstances permit. Also, necessary verbal alterations shall be made to make it applicable. For example, all statutes which contains the prime minister’s office or the monarch’s may be modified to be the President’s.

It has been agreed upon that English law cannot be applied in Nigeria exactly as it is in England. Lord Denning agreed with this position when he stated that English law could not be expected to remain exactly as it is if it is being applied in a foreign jurisdiction as it would have to be modified to suit that jurisdiction. Therefore, received English laws are sometimes modified to suit the Nigerian jurisdiction better.

Where the application of the statute would not create the result which was intended by the legislature, it would not be applicable. In Balogun v. Balogun, a customary law provision was read into a testator’s will instead of adopting the strict application of the English rules on powers of trustees. However, a statute received would not be rendered inapplicable only because it creates inconvenience for the parties.

A statute of general application may also be inapplicable because the administrative and judicial machinery is not available to make it applicable. This was manifested in Halliday v. Alapatira where the court refused to apply the Bankruptcy Act.

Local legislations are superior to all received and extended English laws. A local legislation may repeal an English law as seen in Adeponle v. Saidi. This overriding influence of local legislation has helped to make Nigerian laws less dependent on the English laws.

The Western Region Approach.

In 1959, the governor of the western region enacted a law which limited the reception of the common law. The statutes of general application were re-enacted as local legislation, and so some unfavourable statutes were left out and some statutes after 1900 were re-enacted. The Western Region enacted a partnership law which allowed partners to limit liabilities. As the law was enacted in England in 1907, other regions for a long time had laws which prevented partners from limiting their liabilities since it is so in the Partnership Act of 1890.

Controversy about the limiting date.

There has been a controversy over whether the limiting date applies to common law and the doctrines of equity and whether the decisions of the English courts concerning the common law and doctrines of equity are binding on Nigerian courts. If the limiting date applies to the common law and doctrines of equity, it would mean that common law rules and doctrines of equity developed or established after 1st January, 1900 would not be applicable.

A.N. Allot was of the position that the limiting date should apply to common law and equity as taking any other position would mean that Nigerian courts would forever be slaves to English courts. Park believed that the limiting that should not apply. Allot’s fears could be solved by making English decisions only persuasive and not binding on Nigerian courts. Nigerian courts should be allowed to develop at their own paces.

Others like Professor Nwabueze and Professor Obilade were of the view that the limiting date is irrelevant as Nigerian courts should not be bound by foreign decisions. The decisions of English courts could only serve as persuasive precedents. The only decisions which may be binding are the decisions of English courts which used to be part of the Nigerian hierarchy of courts during the time in which they were a part of the Nigerian hierarchy. An example is that while decisions of the privy council upon appeal from Nigeria before 1963 are binding on courts below the Supreme Court unless overruled, the decisions of the House of Lords are not binding as it was never a part of the hierarchy of courts in the Nigerian legal system.

The courts are of the position that English decisions and doctrines of equity are ordinarily not binding, but only persuasive. In Alli v. Okulaja, the Nigerian court refused to follow the English decision in Edmeades v. Thomas Boards Mills. In Eliochin v. Mbadiwe, the Nigerian court refused to follow the English decision in Rookes v. Barnard. From these, it may be safe to assume that the limiting date of 1st January, 1900 is not to extend to common law and doctrines of equity. The decisions of English courts are also not binding on Nigerian courts, but only form persuasive precedents which may be ignored by the Nigerian courts.

The effects of the adoption of English law in Nigeria.

The first, and perhaps one of the easiest to note, is that laws which have been repealed in England are still applicable in Nigeria and so the laws may be behind times and archaic. It is also important to note the danger in accepting the laws of another nation with a different culture and social value from the country adopting the laws. Furthermore, some of the laws are difficult to ascertain. This was however the easiest choice to be made as it was the system imposed during colonial times and the system the citizens had become used to.