An Introduction to the Nigerian Legal System
The legal system in Nigeria is a combination of English common law, Islamic law, customary law, and statutory law. The Constitution of the Federal Republic of Nigeria serves as the supreme legal document, outlining the fundamental principles of governance and the rights of citizens. Below the Constitution are federal laws, state laws, and local government laws. The Judiciary Act of 1963 and the Supreme Court Act of 1960, which defines how the courts operate in Nigeria, is also part of primary legislation.
English law was inherited from the British colonial rule, and hence the Nigerian legal system shares roots with the English legal system. Under this system, court decisions are based on judgments made by higher courts for similar legal issues in prior cases. Common law also has its foundations in customary laws that predate the common law. Although there is no formal hierarchical structure to the judgment reports, the Nigerian Supreme Court is the highest court in the country. The hierarchy of courts in Nigeria starts with the Local Courts; there are three levels. Following this is the Magistrate Court, then the Sharia Court of Appeal (in states that have adopted Shari’ah Laws for Muslims), and the Customary Court of Appeal (in states that have adopted Customary Laws for Non-Muslims). Above these courts is the High Court , the Court of Appeal, and then the Supreme Court of Nigeria. Due to the Constitution, not only does the Supreme Court has the power to interpret laws, but also it is responsible for enforcing provisions in the Constitution.
In addition, state courts exist primarily to resolve minor offences and disputes among local people, especially in rural areas where resources for accessing the high court are scarce. These courts must act within the powers conferred upon them by the Constitution. The Judiciary Law provides that the Trusteeship Council of the United Nations may apply to the High Court for the enforcement of orders or judgments made in their favours. The Judiciary Law further empowers the High Court to enforce and make orders, as well as to dismiss applications for enforcement in other courts at the same level. The High Court exercises original jurisdiction over cases of certain significance, for example where the matter is one of public interest, or one that involves a large amount of money.
The Constitution establishes courts on federal and state levels. In the case where there is doubt as to whether a commission is provided for any federal law dealing with the selection of personnel for the appointment to the judicial office, the matter is determined by the Federal Judicial Service Commission.
Nigeria’s Constitution and Constitutional Law
The Nigerian Constitution of 1999 is the supreme law of the Federal Republic of Nigeria. To this end, Section 1(1) of the Constitution provides that "this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria." The core attributes of the Constitution include the following: Fundamental Human Rights Part IV of the Constitution contains detailed provisions guaranteeing fundamental human rights to all Nigerians including: Separation of Powers The Constitution sets out the three tiers of government in Nigeria. These are: Federal System The Constitution provides for a federal structure of governance – the Federal Government has exclusive power to legislate on items contained in the Exclusive Legislative List whilst State Governments have concurrent legislative powers on items in the Concurrent Legislative List. Item 63 of the Constitution provides that areas in which the Federal Government has exclusive legislative power (ie Federal Laws) include:
The Criminal Justice System in Nigeria
Criminal law in Nigeria is codified in both the Penal Code (applicable to Northern Nigeria) and the Criminal Code (applicable to Southern Nigeria) with the provisions under the Penal Code generally being in force in the Northern jurisdictions and the provisions of the Criminal Code being in force in the Southern jurisdictions. As the Federal Government controls the criminal law in each state there is no disparity in the laws across Northern and Southern Nigeria.
The Federal Government of Nigeria has introduced laws to implement the following international conventions:
The Criminal Justice Act 2015 amends the Criminal Code and the Penal Code to implement the provisions of the three treaties.
In terms of the criminal justice system, the law requires that once an arrest is made, a suspect must be swiftly charged and tried within a reasonable time (usually 61 days failing which he must be released on bail). There are no special judicial panels or juries in the Nigerian criminal justice system. In practice, upon arrest the suspect can be held by the Police for up to 21 days and may then be remanded in the custody of the Nigeria Correctional Service. Central Bank regulations allow banks to freeze accounts of parties under investigation and criminals can be found guilty by an augumented panel of judges comprising either a minimum of three or five judges of the same Federal or State Court.
Nigeria’s Commercial and Corporate Law
Businesses in Nigeria are substantially governed by the Companies and Allied Matters Act, CAP C20, LFN 2004 (Companies and Allied Matters Act), the Investments and Securities Act, CAP 124, LFN 2004 (Investments and Securities Act) and the Federal Competition and Consumer Protection Act, 2018 (Competition Act). In order to carry on business in Nigeria minor approval and clearance may be required from various government agencies identified below.
The Corporate Affairs Commission (Commission) is a statutory body established under the Companies and Allied Matters Act to regulate companies in Nigeria. All companies other than sole proprietorships are required to be incorporated with the Commission. The Commission has the powers to ensure compliance with the provisions of the Companies and Allied Matters Act by all companies registered in Nigeria. The Commission also has the power to investigate the affairs of a company where it is necessary for the discharge of its duties or in the public interest to do so.
In practice, the Commission requires that all documents with respect to the incorporation of a company be filed with the Commission and stamped by the Commission. The Commission issues a Certificate of Incorporation which gives evidence that a company is duly registered. The corporate existence of a limited liability company in Nigeria begins upon incorporation.
The Stamp Duties Act requires all instruments to be stamped by the Federal Board of Internal Revenue. Approvals and consents from the Attorney General of the Federation as well as the Minister for Trade and Investments may be required where the object for which the company was formed is contrary to national interest.
The Securities and Exchange Commission (SEC) is a government body charged with the responsibility of regulating the securities and capital market. The power of SEC is derived from the Investments and Securities Act. All Securities are required to be registered with SEC in accordance with the requirements of the Investments and Securities Act. Various certificates are required to be obtained from the SEC prior to any public offer of securities. All companies intending to publicly offer shares or securities must register with SEC and obtain a registration certificate.
While foreign investments in Nigeria have not been restricted, under the Investment and Securities Act, any investment may be registered with the Securities and Exchange Commission. To facilitate investment in Nigeria, the SEC has the Foreign Portfolio Investors Exemption Order that enables foreign investors to enjoy incentives and exemptions. Issues of corporate governance have become a focal point in Nigeria, it is important to have in place Corporate Social Responsibility (CSR), codes of conduct and whistle-blower policies.
Family Law and Inheritance Issues
The family law system in Nigeria is complex, and draws from three areas of law. Nigerian family law thus consists of statutory law, Muslim law and customary law. These laws apply as follows: (a) for Christians (or converts from another religion to Christianity), a combination of statutory and customary law applies; (b) for Muslims, only statutory law applies; and (c) for followers of traditional African religion or converts from another religion to a traditional African religion, mainly customary law applies.
Marriage: In Nigeria, marriage can be contracted in accordance with statutory law, Muslim law or customary law. Each marriage gives rise to rights and obligations between the parties. For Christians, the Matrimonial Causes Act and Matrimonial Causes Rules, 1990 (as amended) applies. Muslim Family Law is governed by Islamic law (mainly Maliki law). All marriages under customary law [a combination of local laws, customs and observances] are subject to the Marriage Act, 2004 which ascribes the basic formalities required of a customary marriage, use of age of consent and other conditions. There is currently a Marriage Bill pending before the National Assembly which proposes to do away with marriages contracted under customary law and only permit marriages based on the statutory law of marriage, Islamic law and marriages performed by licensed Christian ministers. This bill, however, is yet to become law, meaning that marriage under customary law still exists in Nigeria.
Divorce: Statutory law regulates divorce for marriages contracted under the Marriage Act . For polygamous marriages, divorce can be regulated under the Muslim law principles or the customary law principles as provided in the relevant rules and guidelines in each State.
Child custody: Under the Child Rights Act, 2003, both parents are jointly responsible for safeguarding and promoting the welfare of their children. The National Child Rights Implementation Committee (NCRIC) is responsible for monitoring the enforcement of the Act through the States. This Act is subject to the provisions of other laws regulating child rights.
Inheritance: Generally, the inheritance laws applicable to any person are determined by his religion. Wills may be made subject to the Wills Acts, 1959 and 2013, by persons whose marriages are either governed by the Marriage Act or customary law. Wills made by Muslims and made of Muslims property are subject to Islamic law.
Probate: A court orders a grant of the estate of a deceased with a valid and effective Will [probate] or without a valid and effective Will [administration]. One with an interest may apply to the court and file a probate/letters of administration application. When approved, an executor or administrator collects the assets, pays debts, settles claims and distributes the estate according to the Will or intestacy rules. A certificate of compliance in accordance with the Investment and Securities Act, 2007 (ISA), goes along with the grant; enabling the executor or administrator to transfer securities to the beneficiaries.
Laws Relating to Land and Property in Nigeria
Nigeria’s land and property law principles are enshrined in the Land Use Act of 1978. The Act focuses on the land tenure system and its implementation as well as the transfer of land rights. Land use in Nigeria is also governed by the Land Registration Act of 1924. As a general rule, the safety of ownership of any estate, right or interest in land in Nigeria is predicated on the completion of all customary requirements, including registration of title where applicable.
Land ownership in Nigeria can be grouped into three classes: freehold, custom and state grant. A land owner has the right to use land as he or she sees fit, as long as it is not injurious to the interest of other owners or the general public. The Land Use Act stipulates that rights to land in the country are granted to individuals via certificate of occupancy or statutory right of occupancy, which are equivalent to freehold, regardless of their tenure of the land. The Act also puts government in control of the disbursement of land; with every state acting as a custodian of land within its territory. Acquisition and ownership of land through freehold title, leasehold title, or otherwise that is not in accordance with the Land Use Act is not valid. Any transaction risk losing its value if the title has not been legally acquired, transferred or registered. As a matter of customary usage and general practice, patents, Copyright or trademarks may be registrable but shall be protected until revoked by a competent authority if registration for patent is not renewed after every 14 years or is cancelled by the Attorney-General where not protection is considered desirable to the country’s economy. Establishment of ownership or interest in land is usually based on the principle of first in time, first in right (the rule of capture). The requirement of registration varies according to location and the type of transaction in question. Countries like Nigeria that have Land Use Acts require mandatory submission to the appropriate land use authority. Registries are maintained and operated by regional governments. A registrant can only be removed from the registry by a court or the appropriate land use authority. Remedies available to an aggrieved party include injunctions, damages and declarations. Under the Land Use Act, default in payments of rents and taxes or the use of land for ancestral shrines can be grounds for revocation of occupancy. Under the Land Use Act, compulsory acquisition of land and compensation of the owner is the prerogative of the government. In all cases, a fair market value must be paid. The government can also acquire land for public use but again the land owner must be compensated.
Human Rights and Protections under Nigerian Law
Nigeria’s Constitution does provide for certain human rights. However, a wide range of human rights violations has continued to occur in Nigeria. The State of Human Rights Report published in 2016 by the African Centre for Media and Information Literacy estimated that Nigeria received an overall rating of 34 per cent in the sector of human rights. Whereas Section 17 (2) (c) of the CFRN provides that "the security and welfare of the people shall be the primary purpose of government", this principle has not been effectively actualised and violated in several ways in Nigeria. A major challenge to human rights has been the failure to hold perpetrators of criminal activities such as sexual offences accountable and to prevent these crimes from recurring.
The statutory provisions for the protection of human rights in Nigeria include a number of existing laws, such as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act) Cap A9 LFN 2004 (which is a law that incorporates the provisions of the African Charter on Human and Peoples’ Rights into Nigerian laws) and the Child Rights Act 2003 Cap C50 LFN 2004 which was enacted to harmonise all legislative provisions relating to the rights and welfare of children.
Violations of human rights carried out by state agents can be addressed through the legal system. The common law provides remedies for human rights violations and wrongs such as trespass, false imprisonment or wrongful arrest, malicious prosecution and defamation . Legislative provisions also offer remedies for some human rights violations and wrongs. For example, the National Industrial Court recently awarded damages to an applicant who claimed that her constitutional right to dignity of person was violated by her employer subjecting her to sexual harassment.
The Nigerian Police force is primarily responsible for the public safety and order of citizens but have constantly been accused of acts of violence including arbitrary arrests and torture. Other bodies like the National Women’s Commission, the National Agency for the prohibition of Trafficking in Persons (NAPTIP), the Independent Corrupt Practices Commission and the National Human Rights Commission take initiative to raise awareness of these human rights issues and provide legal assistance and financial support to victims of human rights violations.
Numerous groups exist to uphold human rights in Nigeria. These include the Niger Delta Youth Peace Corp (NDYPC) which raises awareness of human rights, Women Trafficking and Child Labour Eradication Foundation (WOTCLEF) that promotes better standards of living and protection of human trafficking victims and Children and Youth Resilience International Initiative (CYRIIT) a non-profit organisation that promotes and provide free legal services and juvenile justice system and rehabilitation of children and teenagers.