Nigerian Legal System PDF

NIGERIAN LEGAL SYSTEM THE IDEA OF A LEGAL SYSTEM MEANING OF “LEGAL” AND “SYSTEM” Legal means of the law, System means an ordered set of ideas, theories or principles interacting within a given framework or the organized relationship between component parts of a work.  MEANING OF A LE...

NIGERIAN LEGAL SYSTEM THE IDEA OF A LEGAL SYSTEM MEANING OF “LEGAL” AND “SYSTEM” Legal means of the law, System means an ordered set of ideas, theories or principles interacting within a given framework or the organized relationship between component parts of a work.  MEANING OF A LEGAL SYSTEM COMPOSITE PRINCIPLES OR PROCEDURES FOR THE CLASSIFICATION OF LAWS, MATTERS OR METHOD RELATING TO THEM IN ANY GIVEN JURISTIC REGIME. THE LAWS, COURTS, PERSONNEL OF THE LAW AND THE ADMINISTRATION OF JUSTICE SYSTEM IN A STATE OR COUNTRY. NATURE OF NIGERIAN LEGAL SYSTEM EVERY LEGAL SYSTEM HAS ITS NATURE INCLUDING THE NIGERIAN LEGAL SYSTEM. NATURE OF NIGERIAN LEGAL SYSTEM FROM THE PERSPECTIVES OF: Duality of Structure Nature of Administration of Justice: Accusatorial. Nature of Judicial Set Up: Hierarchy of Courts. CUSTOMARY AND NON CUSTOMARY LAW Non customary law includes received English law, local law and rules of law derived from judicial precedents.  CUSTOMARY LAW AND NON CUSTOMARY LAW Customary law is that part of law that is indigenous to the people. Customary law is treated as facts and can only be proved by evidence or judicially noticed. Customary law is subject to test: must not be repugnant to natural justice, equity and good conscience and must not be incompatible with any law for the time being inforce. NATURE OF NIGERIAN LEGAL SYSTEM Nature of Legal Profession System of Precedents Military Influence Complexity  DUALITY/MULTIPLICITY OF STRUCTURE The legal system is dual or multiple It is a combination of different systems of law put together. These systems include: The English law: Received English Law or Extended English Law Local Legislation Customary Laws and Islamic Law. SUBSTANTIVE AND PROCEDURAL LAW Substantive Law comprises all the laws that define the existence and extent of a right or liability of persons in a society. Procedural law , on the other hand , involves the rules by which an action may be brought and disposed of. It prescribes the method for enforcing substantive law. MUNICIPAL AND INTERNATIONAL LAW The classification of law into municipal and international law places relevance on the territory and scope of application A municipal law refers to the laws of a sovereign state that do not operate outside its boundaries while international Law refers to that law that binds respective states and regulates their mutual co existence and relationship. MIXED JUDICIAL SET-UP Judicial set up is mixed in the following ways: Mixed Jurisdiction (Civil and Criminal) Exercise of Civil and Criminal Jurisdictions concurrently Federal and State Courts exist concurrently but with separate powers. Convergence at Court of Appeal and Supreme Court as appellate courts.  NATURE OF LEGAL PROFESSION The nature of the legal profession includes the process of legal education and the practice of the law At pre-independence era, the qualification for legal practice in Nigeria was call to the English Bar or enrolment as a solicitor in England. With the introduction of the Legal Practitioners Act of 1962, legal education and practice is controlled by Nigeria. Upon being called to the Nigerian Bar, the legal practitioner is enrolled as a barrister and solicitor of the Supreme Court of Nigeria. A primarily legislative system yet giving room for the judiciary to adjust rules to social change and new needs, by way of interpretation and creative jurisprudence  Characteristics of law in Civil law Jurisdictions A comprehensive system of rules and principles usually arranged in codes and easily accessible to citizens and jurists A well organized system that favors cooperation, order and predictability based on a logical and dynamic taxonomy developed from roman law and reflected in the structure of codes An adaptable system with civil codes avoiding excessive detail and containing general clauses that permit adaptation to change. NATURE OF JUSTICE ADMINISTRATION The system of administration of justice is adversarial in nature. Adversarial nature of administration of justice detaches the judge from the proceedings. i.e ( parties) and places them in a neutral position. Inquisitorial system on the other hand involves the judge in the resolution of dispute and prosecution of offenders.  Proof beyond reasonable doubt and the Presumption innocence of an accused until proved guilty are features of adversarial system. See s. 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999, As Amended. Judicial precedence and stare decisis are features of justice administration. CIVIL LAW AND COMMON LAW In civil law jurisdictions, Judges are usually described as investigators and they lead the proceedings by bringing charges, proving facts through witnesses examination and applying remedies in the laws. Inquisitorial system In common law, Judges are neutral and passive while lawyers active as they make presentations to the judge and examines witnesses themselves: adversarial system.  CIVIL LAW AND COMMON LAW Civil Law here refers to the ancient Rome as it has its origin from the roman Ius Civile, having evolved from the commentaries of European scholars on the Justinian Code. Common law is the law that was developed by the English courts from the common customs and practices in England. In common law jurisdictions, case law in the form of judicial opinions and precedents are of primary importance while in civil law jurisdictions, codified statutes predominate. MILITARY INFLUENCE The system is characterized by military influence. The military system of the past administrations in Nigeria brought about unitary system of governance with a centralized chain of command. NATURE AND FUNCTIONS OF LAW. What is law?. Law means different things to different individuals and disciplines. Economist: demand and supply, physicist: gravity etc. Theories of Law: Natural Law, Positivist Law School, Historical School, Sociological or Functional School, Realist School. Etc. PRIVATE AND PUBLIC LAW There are times that the elements of one branch of law may be found in another. i.e, the elements of private law may be found in civil law. For instance, the extent of a private right, say in tort may be determined or limited by some constitutional provisions. A set of facts can give right to a remedy in private law and public law. if A Slaps be, it could be a tort of battery in private law and assault in criminal Law( Public law  PRIVATE AND PUBLIC LAW Private law is that branch of law that regulates the conduct of juristic persons in their interpersonal dealings with one another. Private Law confers status, rights and obligations on individuals or juristic persons. Eg: Tort, Family law, Contract etc. Public law is a branch of law that is concerned with the running of the machinery of the state as well as provides for situations where the interest of the society is involved. Eg: Constitutional Law, Administrative Law, criminal Law etc. The Natural Law School The proponents of this school of thought believe that law is Divine, Supernatural, and Universal For any law to be valid, it must conform to certain objective moral principles that agree with the nature of man and dictates of reasoning Proponents were Greek philosophers and Christian theologians. E.g. Aristotle, Thomas Aquinas, John Finnes etc. The natural law school supports modern regime of international law, the emergence of fundamental human rights and the rules of natural justice.  The Positivist’s Theory Proponents of this belief are Bentham, Bodin, Hobbes and John Austin. The positivist school of thought sees law as a command of the political sovereignty to a political inferior which is backed by sanction upon disobedience A distinction between a mere request or instruction and a command The sovereignty must be one that that commands habitual submission from members of that political society and obeys no one. CRIMINAL AND CIVIL Civil law is that aspect of law that is concerned with competing private interests and obligations while criminal law involves the enforcement of those rules, conducts, the infringement of which will attract punishment. Civil actions are commenced by private persons in accordance with the rules of civil procedure and claims are for damages or injunctions while criminal law actions are commenced by states and end in convictions. The party instituting a criminal action is the prosecutor while the person bring a civil action is the claimant or plaintiff.  CLASSIFICATION OF LAW CRIMINAL & CIVIL PRIVATE AND PUBLIC CIVIL LAW AND COMMON LAW MUNICIPAL LAW AND INTERNATIONAL LAW SUBSTANTIVE LAW AND PROCEDURAL LAW CUSTOMARY AND NON CUSTOMARY The Sociological or Functional School The sociological school seeks to understand law from the perspective of its role in the society. Radolf Von Jhering sees law as a means of ordering society by regulating conflicting interests. Lawyers: law as an instrument of resolving conflicting interests in the society hence engender peace and harmony. Therefore, law is an instrument of social engineering and societal control. Dean Roscoe Pound is also a proponent of this school of thought.  The Realist School. The realist school sees law as an expression of the states through the court. the law is not what the statutes and enactments say but what the courts say or interpret it to be The major and renown proponent of this theory Justice Oliver Wendell Holmes is quoted to have said that law is “the prophesy of what the courts will do in fact and nothing pretentious” a bad man who is in need of advice is not so much concerned about what the statute books say but what the courts are likely to do in the circumstance. FUNCTIONS OF LAW It ensures order and peace in society, otherwise life would be brutish, nasty and short. It is an instrument of political, economic and social change and stability It is a means of regulating the society. Grants remedy and justice to those who have been wronged etc  FUNCTIONS OF LAW It is a code of conduct It specifies the structure, framework and the order for all aspects of life and the society It is a means of resolving and settling disputes peacefully It is a guarantee of rights, freedom and duties It is an instrument of regulating society The Historical School of Thought The historical school, propounded by Fredrich Karl Savigny who based his theory on the notion of “Volkgeist” which means “the spirit of the people” Sevigny believes that law evolves from the customs of the people and these customs are molded by the history of the people Law starts as custom of a people acceptable by the people and grows to acquire the status of law. The historical school of thought asserts that law develops organically from the spirit of the people just like language and culture  The Purist Theory The proponents of this theory, especially keelson, argue that a study of a legal system should be limited to the consideration of legal norms They submit that the norms of any legal system are organized in a hierarchical order where the grund norm is at the top and other norms follow in an order Kelson argues that every norm derives its validity from a higher norm and all the norms trace their validity to the grunorm. The purist proponents argue that law should be separated from any mixture with moral, psychological, sociological or political considerations. WHAT IS LAW Law is a system of rules that a society or government develops in order to deal with delinquency, commercial transactions and interpersonal relationships. Law: set of rules, code of conduct, regulations formulated by Government or those in authority, that regulate the conduct and activities of people in the society, the breach of which is backed by sanctions. Key points are: Rules or regulations; formulated by those in authority; regulate the conduct and activities of people; enforced by those in authority or the state.