WHAT ARE THE DIFFERENT SOURCES OF LAW
HOW TO GET LAW
In this article, I will try to assist the budding law students and lawyers to identify how and where to locate information on which law applies or what the position of law is in relation to any legal problem that may confront him or her. In other words, the expression “sources of law” refers to the materials through which a legal practitioner or a court or judge would find reliable authorities for a particular legal question.
In this article, I will base mostly on the sources of Nigerian law. There are two aspects of the sources of the Nigerian law, there are:
- Primary sources: which includes-
- English law
- Nigerian legislation and subsidiary enactments
- Nigerian case law or judicial precedent
- Customary law
- Secondary sources: which comprises-
- Law reports
- Legal periodicals
- Law digests
Having known these sources of law, I will like you to note that only the primary sources have a binding force of the court of law in Nigeria whereas the mentioned secondary sources can merely serve persuasive purposes, and are usually relied upon where no primary source is available or applicable. We shall attempt a detailed discussion of each of these sources one after the other.
The English law
Any study of the Nigerian legal system will be incomplete without a consideration of the impact of the English law. The received English law remains a veritable source of Nigerian law. This is understandably so because of Nigerian’s colonial heritage as English law was introduced into every part of the country following the establishment of British colonial administration in the nineteenth century (you can read further on this on this book source of Nigerian law by N. Tobi. The various legislatures in Nigeria have thereafter made enactment which received English law directly into their jurisdictions or extended the force of English statutes into Nigeria.
It is important to note that no problem is usually associated with the question of the applicability of common law and doctrines of equity in Nigeria since Nigerian courts have continued to recognize and apply common law principles and rules of equity to cases coming before them for adjudication as such principles and rules stand in England on the day of their application in Nigeria. What I am saying here is that the application of English common law and principles of equity are not barred or limited by time in Nigeria.
The following English statues have been held to be statutes of general application with reference to Nigeria:
- Infant Relief Act, 1874, in the case of Labinjoh v Abake (1924) 5 NLR 33
- Trustees Act, 1888, in the case of Taylor v Taylor (1934) 2 WACA 126
- Limitations Act (Real Property), 1874 in the case of Thomas v De Souza (1929) 9 NLR 81
- The statute of Frauds, 1677, in the case of Malomo v Olusola (1954) 21 NLR 1.
Nigerian legislation consists of statutes and subsidiary legislation, Statutes are laws enacted by the legislative arm of government. There are variously called Ordinances, Acts, Decrees, Laws or Edicts depending when and by whom or under which form of government they are made. Subsidiary legislation is a law enacted under the power conferred by a statute. Another name for subsidiary legislation is delegated legislation. Examples of these are bye-laws of local governments, regulations of public corporations, statutory instruments by ministers and so on. A statute under which subsidiary legislation is made is known as an enabling statute.
Nigerian customary law
Another important source of law in Nigeria is customary law. Customary law consists of the customs by members of a community as binding among them. Nigerian customary law is usually classified into ethnic/non-Moslem customary law and Moslem (Islamic) law. Ethnic customary law is indigenous, unwritten and diverse from one ethnic group to the other. The diversity of the customary law system is a major obstacle to a uniformity of the customary law system in each state.
Moslem law is however in largely written form. The sources of Moslem law are the Holy Quran, the practice of the prophet (the Sunna), the consensus of Islamic scholars and analogical deductions from the holy writ. This is also known as the Sharia i.e the sacred law of Islam. The predominant version of Islamic law in Nigeria is that of the Maliki School.
One of the most striking features of customary law is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its character.
In my next article, I will talk about the secondary sources of law.