Law and the Sources of Nigerian Law: English Law, Equity and Custom

Before you can apply a law, you need to know where it comes from and how to find it. Nigeria has an unusual mix of sources: laws inherited from England, laws made by Nigerian legislatures, local custom, decisions of the courts and international agreements. Each has a different status, and an exam question often turns on which one applies.

This topic defines law and then takes each source in turn. It is the foundation for every other chapter, so learn the vocabulary exactly.

What is law?

Many writers have defined law and none of the definitions is universally accepted. John Salmond described it as the body of principles recognised and applied by the state in the administration of justice. Law is also a formal means of social control. It is formal because the courts and the legal system can enforce its rules.

Its purposes include keeping order, protecting rights, settling disputes and giving remedies when a right is broken.

A source of law has two meanings: where the law comes from, and where it can be found.

Received English law

English law is a major source because England colonised Nigeria. It was first brought to the Lagos Colony by Ordinance 3 of 1863 and was later extended to the whole country. It consists of three parts.

Common law

Common law is the law that grew out of decided cases and applied uniformly across England, as opposed to local custom. After the Norman Conquest of 1066, the king’s judges travelled the country and met to compare their decisions. They kept the best customs and applied them everywhere, so the law became ‘common’. Today the phrase separates judge-made law from law made by statute.

Common law became rigid. A claim started with a writ, and if no writ fitted the facts there was no remedy. A small error in form could lose the case. The only remedy was damages, a payment of money, which is useless when what the claimant needs is to stop something happening. A claimant whose neighbour is trespassing needs an injunction, not a cheque.

Doctrines of equity

In a broad sense, equity means fairness. In the technical sense it is the body of rules developed by the Court of Chancery to soften the harshness of the common law. People who could not get justice in the common law courts petitioned the king, who passed their cases to the Lord Chancellor, the ‘keeper of the king’s conscience’.

He decided by fairness and invented new remedies. The Judicature Acts of 1873 to 1875 later let one court apply both bodies of law.

All equitable remedies are discretionary: the court decides whether to grant them. If common law and equity conflict, equity prevails, as the Earl of Oxford’s case (1615) decided. The twelve maxims of equity guide the courts. In short they say that:

1. equity will not suffer a wrong to be without a remedy;
2. he who comes to equity must come with clean hands;
3. he who seeks equity must do equity;
4. where the equities are equal, the first in time prevails;
5. equity follows the law;
6. delay defeats equity;
7. equality is equity;
8. equity looks at the intent, not the form;
9. equity looks on as done what ought to be done;
10. equity imputes an intention to fulfil an obligation;
11. where the equities are equal, the law prevails; and
12. equity acts against the person.

Statutes of general application

Statutes of general application are English laws of general application that were in force on or before 1 January 1900. They became part of Nigerian law through adaptation laws and remain so until a Nigerian statute on the same subject replaces them. Examples are the Partnership Act 1890, the Sale of Goods Act 1893, the Bills of Exchange Act 1882, the Wills Act 1837 and the Statute of Frauds 1677.

They do not apply where there is a local statute on the subject.

English laws made for Nigeria between 1900 and 1 October 1960 are a separate group called English laws extending to Nigeria. Examples are the Criminal Code and the Penal Code.

Nigerian legislation, custom, precedent and international law

• Nigerian legislation. The Constitution, Acts of the National Assembly, Laws of State Houses of Assembly, decrees and edicts under military rule, and local government bye-laws. These are covered in the next topic.
• Judicial precedent or case law: the decisions of the courts, also covered next.
• International law. Treaties, conventions and charters form part of Nigerian law only once the National Assembly passes a law to give them effect (section 12(1) of the Constitution). The African Charter on Human and Peoples’ Rights applies in Nigeria through the Act that ratified it.

Customary law

Customary law comes from the customs a community accepts as binding. It is generally unwritten, so it must be proved in court. A court applies a custom only if it passes three tests.

Worked example: which source applies?

1. Look first for local legislation. There is none, so a statute of general application may apply.
2. Check the English statute. The Sale of Goods Act 1893 was in force before 1 January 1900, so it is a statute of general application and applies.
3. Test the custom. A custom applies only if it passes the repugnancy, incompatibility and public policy tests. Here it conflicts with a statute that is in force, so it fails the incompatibility test.
4. Conclude. The Sale of Goods Act 1893 governs, and the custom is not applied.

The sources in more detail

How English law came to apply, and how to use the sources together

English law was first brought to the Lagos Colony by Ordinance 3 of 1863 and later extended to the rest of the country. It arrives in three parts: the common law, the doctrines of equity and statutes of general application. When you face a legal problem, work through the sources in order. First ask whether the Constitution or a Nigerian statute deals with the point, because legislation overrides the older sources.

If there is no local statute, look at the statutes of general application and the common law and equity. Customary law applies to matters that fall within a community’s custom, and only if it passes the tests. Decided cases then show how a court has read all of these. Treaties apply only if the National Assembly has passed a law to give them effect.

Common law and equity compared

Because equity is discretionary, a claimant has no right to an equitable remedy. The court decides, and it looks at the claimant’s own conduct. That is why several maxims deal with the claimant’s behaviour.

The twelve maxims explained

Customary law in practice

Customary law is unwritten, so the person who relies on a custom must prove it by evidence. Customary courts and area courts apply it, and their decisions go on appeal to the Customary Court of Appeal or, for Islamic personal law, the Sharia Court of Appeal. Its usual territory is marriage, inheritance and guardianship under custom. The three tests act as filters.

A custom that treated a debtor as the creditor’s property would be repugnant to natural justice, equity and good conscience. A custom that contradicts a statute fails the incompatibility test, because statute prevails. A custom that offends the moral standards of the community that is said to follow it fails the public policy test.

Cases the syllabus relies on

Complete reference lists for this topic

The six sources of Nigerian law, as an examination answer

1. The common law of England, the judge-made law developed from decided cases after 1066.
2. The doctrines of equity, the rules and remedies developed by the Court of Chancery to soften the common law.
3. Statutes of general application, English statutes in force on or before 1 January 1900.
4. Nigerian legislation, being the Constitution, Acts, Laws, decrees and edicts under military rule, and bye-laws.
5. Customary law, the unwritten customs of Nigerian communities that pass the validity tests.
6. Judicial precedent, the decisions of the courts. International law and secondary sources such as law reports and textbooks may be added as a seventh and eighth point.

If a question asks for the three types of received English law, the answer is the common law, the doctrines of equity and the statutes of general application.

Statutes of general application: the list to know

These are English statutes that were in force in England on or before 1 January 1900 and were made part of Nigerian law by adaptation laws. They remain law until a Nigerian statute on the same subject replaces them, and they do not apply where a local statute covers the subject. The syllabus gives these examples:

English laws extending to Nigeria

These are laws made by the English Parliament specifically for Nigeria between 1900 and 1 October 1960. The syllabus gives as examples the Copyright Act 1911, which was later repealed by the Copyright Decree 1970, the Criminal Code, the Penal Code and the Independence Act 1960.

The difference from statutes of general application is therefore one of date and purpose: the first group were not made for Nigeria and are older than 1900, and the second were made for Nigeria between 1900 and independence.

Forms of Nigerian legislation

The Constitution of the Federal Republic of Nigeria; Acts of the National Assembly; Laws of the State Houses of Assembly; decrees (federal military government) and edicts (state military governments); and bye-laws of local government councils.

Questions that have been asked on this topic, and how to answer them

A model approach to a problem question

Suppose a question describes a dispute and asks which law governs. Work in this order and show each step: (1) Is there a Nigerian statute? If so it governs, subject to the Constitution. (2) If not, is there a statute of general application that fits, such as the Partnership Act or the Sale of Goods Act? (3) Is the question governed by the common law, with equity supplying a remedy?

(4) Does a custom apply, and does it pass the three tests? (5) Has a court decided the same point, and is the decision binding or persuasive? A clear order of steps earns the marks for method even where the final point is close.

Common mistakes in the exam

• Listing the sources with no explanation of what each one is.
• Treating equity as the same as fairness in general. Equity is a body of rules with its own remedies.
• Forgetting that equitable remedies are discretionary.
• Confusing statutes of general application with English laws extending to Nigeria. The first are older than 1900 and apply everywhere. The second were made for Nigeria between 1900 and 1960.
• Applying customary law without the three tests.
• Saying that a treaty is automatically Nigerian law.

Quick revision

• Sources: received English law, Nigerian legislation, custom, precedent, international law. Secondary: reports and textbooks.
• Common law defects: writs, formalism, damages only. Equity cured them, and equity prevails.
• Equitable remedies: injunction, specific performance, rescission, rectification, freezing and search orders.
• Statutes of general application: in force in England by 1 January 1900.
• Customary law tests: repugnancy, incompatibility, public policy.

Practice questions

These are original questions written in the style of the Institute of Chartered Accountants of Nigeria (ICAN) exam. Try each one before you open the answer.

Section A style: multiple choice

Section B style: written questions

A further written question

Model answers

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