PUL 101 Legal Method I **

1. LAW IN SOCIAL CONTEXT

1.0 Introduction.

Legal Method is an introductory and unique course for students who are interested in studying
Law. With it, they are indoctrinated into legal studies. Legal method opens up students to the
techniques, nature, language and dynamics of law in such a way that they understand better the
application of law as they proceed in their undergraduate sojourn.

Legal method is the study of law and various methods, approaches, processes and procedures
that can effectively and beneficially be used to meet the needs of the individuals and state.1 In
Legal Method, the technique of thinking like a lawyer is analysed2 and the foundation for
learning specific rules or branches of law (substantive or procedural law like law of contract,
company law, family law, criminal law and procedure) is laid.

Defining ‘law’ is not an easy task as the word can be used in either a technical or general sense.3
Different scholars have defined law in the technical sense based on their background and
experiences. Law is defined as a rule or body of rules made by institutions, bodies or persons
vested with the power to make such rules which are binding and enforced among members of a
given state. It has been said to regulate how persons and bodies should behave. To Sir Williams
Blackstone, law is the rule of action which is prescribed by some superior and which the inferior
is bound to obey. There is no single authoritative definition of law free from criticism. As there
are many scholars, so are definitions numerous. That is why law is better described than defined.
In describing law, some of its outstanding characteristics will be discussed.

1.1 Features of Law.

1. Body of Rules: Law is a body of rules in the sense that in regulating the society, law is
contained in documents, statutes, judicial decisions among other sources. To a layman,

**Itunu KOLADE-FASEYI LL.B (Hons) (Okada) BL,(Kano) LL.M (Ibadan) PhD (AAUA) College of Law, Caleb
University, Lagos Email: itmowo@gmail.com
1
Malemi, E., The Nigerian Legal Method 2nd ed. (Princeton Publishing Company, Lagos, 2012) 2.
2
Sanni, A., ‘Law in Social Context’ in Sanni, A., (ed) Introduction to Nigerian Legal Method 2nd ed. (Obafemi
Awolowo University Press, Ile-Ife, 2006) 1.
3
Obilade, A.O., The Nigerian Legal System. (Spectrum Law Publishing, Ibadan, 1979) 3.

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 law is codified in a ‘big book’ like the constitution to which we all make reference to
whenever legal questions arise. This is not true as the constitution is just one of several
documents from which law is sourced from.
2. Man-made: Law is a creation of human beings. They are made by the legislature or other
bodies legally recognized or authorized to make law in a given legal system. This is in
contrast to the olden days when laws evolved over a period of time from customs or
ancient times when laws were handed down to man by God. It is important to note that
because law is man-made, if the law is ineffective or bad, man must take responsibility
for it because such bad law is his making.4
3. Law is dynamic: Law is not static, it evolves or changes over time to meet the changing
needs of the society either socially, politically, culturally, politically or otherwise. The
content of the law of any society reflects the prevailing conditions at a given time
especially when the law is made.5 For example, because Nigeria is presently in a
democratic dispensation, laws made during this era will be glaringly different from
military decrees. Same Sex Prohibition Law was enacted in 2015 because at that time
activities of homosexuals were gaining grounds. Hate Speech Bill and the likes are
becoming popular because of the need to regulate social media information and things
posted online. Ten years ago, there was no need to regulate the cyberspace but that is
possible now because of the dynamism of law- it changes to meet present realities and
better secure individuals in the country.
4. Law is normative in character: A Norm is a standard, model or pattern regarded as
typical. Law is normative in that it is prescriptive; it is a rule or system of rules which
prescribes what should or should not be done. It shares this same character with some
rules of custom, morals and religion. Law is a reflection of social beliefs regulating
human or societal conduct.6
5. Element of Coercion: Law has a compelling force. A breach of its rules attract sanctions
which are usually enforced with the instrumentality of organized institutions like law
enforcement agencies, the court or correctional institutions. If there is no element of

4
Sanni, op cit., 6.
5
Ibid., 9.
6
Ibid., 7.

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 coercion or sanctions attached then such rules are merely moral advise that can be
routinely flouted.
6. Territorial Limitation: Laws are meant to regulate the conduct of people within a
known territory or location. For example, the Constitution of Federal Republic of
Nigeria, 1999 (as amended) can not bind citizens of Ghana this is because they are
sovereign states not subject to each other. Laws within a given jurisdiction may not be
generally applicable especially where marked cultural, political, religious differences
exist. For example in the Northern part of Nigeria where the Penal Code is applicable
some offences like zina (adultery) are criminalized while in the South where Criminal
Code holds sway none of such is codified.
1.2Functions of Law
The importance of law in the society cannot be over emphasized because laws are
enacted to serve various purposes and meet various societal needs. It regulates private
individuals, corporate institutions and governmental bodies within a legal system.
Specific functions of law are discussed below:
a. Law defines and regulates social relationships between individuals and groups. For
example while South Africa has been permitting marriages between same sex couples
since 2006, such marital contract is outlawed in Nigeria by virtue of the Same Sex
Marriage (Prohibition) Act. The Constitution of Achievers University Owo Law Students
Association defines and regulates relationship and behaviour of law students in the
College with conducts during examinations, usage of library, dress code explicitly stated.
b. Law is an instrument of change and stability. Given the fact that law is dynamic and not
static, it can be used as an instrument for restructuring any sector of the economy. Any
law that is rigid and unchanging to reflect the changing nature of the society is bad law.
The law must stipulate the procedure for changing the old rules and provisions of the
law.7Some may require amendment while for others, a subsidiary legislation may do the
magic.8
c. Law is an instrument of social control. It prohibits lawlessness, and unlawful conduct. In
ensuring that there is peace and stability there are formal mechanisms for resolving or

7
Ibid.,31.
8
Ibid.

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 settling disputes without rancour or self help. In dispute resolution, availability of
remedies to a large extent placate the injured party
d. Law identifies and allocates official authority to individuals or bodies to exercise certain
powers on behalf of the State or institutions. For example the principal arms of
government is established and regulated by the Constitution, they are also to keep within
the constitutionally established limits otherwise their activities will be ultra vires. 9
1.3 Philosophies or theories of Law.

Philosophies or theories of law encapsulate the various beliefs of scholars on what law is. Their
description or definition of law is basically influenced by their background. These theories are
discussed below:

1.3.1 Natural Law Theory: This is the earliest and first school of law.10 Theorists in this
school of thought include Aristotle, Cicero, Zeno, Thomas Aquinas, Grotius among
others. Thomas Aquinas opined that ‘the first rule of reason is natural law’ which is
derived from God the ultimate law maker. According to him, ‘if human law is at
variance with natural law such human law is no longer legal but a corruption of law.11
Natural law to Cicero is ‘right reason in agreement to nature.’ He ranks natural law above
other forms of law and posit that any man made law in conflict with dictates of natural
law should be disobeyed and abolished.12

Natural law is what is fair, just or right based on good conscience. The philosophers here
believe that when man is guided by reason observation and reason, he is able to make
good and just law which is in conformity with the law of nature.13They believe there is an
inherent inclination in man to do what is right and abstain from evil. For example most
people will desist from killing fellow human being, stealing, telling lies or engaging in
social vices; the ‘external force’ Natural law validates man-made laws in that where man

9
Ibid., 29.
10
Malemi, op cit., 19.
11
Ibid., 22.
12
Ibid., 21.
13
Sanni, op cit., 15.

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 made laws are not in consonance with natural law, such laws should not command the
obedience of the people.14

The philosophies of this school of thought have helped in providing the philosophical
basis for criticizing or questioning unjust law and calling for reforms.15They have also
served as the springboard for what is now known as fundamental human rights.

However, law here is defined in terms of its purpose rather than its form. Its
consideration of law as it ought to be rather than law as it is has been criticized.
Principles of natural law or law as it ought to be may not be enforced and its violation not
sanctioned if they are not enacted formally. The ‘multiple conscience problem’ may also
arise where the different ideas of people’s ‘fairness,’ ‘rightness,’ or ‘justice’ on the same
issue clashes.16 This happens most times because of the different value systems people
hold dear. Whose conscience should be used in judging or assessing an act? This
definitely will lead to a downward slope of lawlessness and anarchy if people are left to
act according to the natural dictates of what they think is right or good that is why in
practice, only written laws are enforced by the courts.

1.3.2 Positivist School: Positivist is from the word ‘posit’ which means to put or place.
According to theorists here, law is put in place by a sovereign or his agents; law is les
lata lex les ferendi that is, law as it is and not law as a it ought to be. For them, there is no
room for external factors when considering the law even where such law is bad, it
remains ‘valid’ until abolished or amended. To Austin, ‘…the existence of law is one
thing; its merit or demerit is another…A law which actually exists is a law, though we
happen to dislike it…’17

There are two schools of thought under the positivist school, these are:

The Command theory: John Austin propounded the Command theory of law. He defines
law as ‘a command set by a superior being to inferior beings and enforced by

14
Ibid., 16.
15
Asein, J.O., Introduction to Nigerian Legal System 2nd ed (Ababa Press Ltd, Lagos. 2005)11.
16
Ibid., 16.
17
Quoted in Malemi op cit., 42.

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 sanctions.’18 His definition implies that there is an ‘uncommander commander who is
the sovereign with limitless power and who wields or exerts so much power that the
subjects or inferiors must obey, otherwise they face sanctions.

One of the criticism against Austin’s Command theory is grounded on the assertion that
not all laws are couched in command formats like ‘thou shall,’ ‘thou shall not’. There are
procedural laws (Fundamental Rights Enforcement Procedure (FREP) Rules), substantive
laws(Fundamental Human Rights in the Constitution), enabling laws (some aspects of
Wills Act, Marriage Act). There are valid laws which are not forceful or assertive.
Secondly, the theory has been said to have raised dust as regards the determination of the
uncommanded commander. Who is he? The executive? Legislature or judiciary? Does he
exist in a modern country with doctrine of checks and balances and principle of
separation of powers in place? The idea of an ‘uncommanded commander’ painted by
Austin which can be a common feature in a dictatorship or military era is not even
sacrosanct as same is curbed by the law. In the case of Lakanmi v. AG West,19 the court
declared the military government’s action null and void for being ultra vires existing law.

In addition, saying that fear of sanction brings about obedience to laws may not be
generally true. This is because some individuals may obey laws because they are
naturally inclined to do so and not because of the tag of sanction.

Pure Theory of Law: propounded by Hans Kelson who describes law as s system of norms. The
legal validity of a rule of law is determined by reference to whether it has been laid down or
posited in line with the requirements laid down by the legal system in question.20 To Kelson, law
is a norm; it is valid because its validity is traceable or linked to a higher norm (grundnorm)
which is the final authority in a legal system. For example a subsidiary legislation is valid
because its authority is derived from the main statute which may be hinged on provisions of the
constitution.

Just as John Austin’s sovereign or uncommanded commander is not easily determined, the
groundnorm in Kelson’s theory is difficult to establish and has been criticized for that. In

18
Sanni, op cit., 11.
19
(1971) 1 U.I.L.R 201.
20
Mcleod, I., Legal Method. (Macmillian Press Limited, London.1993) 6.

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addition, it appears the theory merely concerns itself with the formal validity of law rather than
its effects in the society; it doesn’t bother itself on the propriety, morality or content of laws.

1.3.3 Historical School: was propounded by Friedrich Savigny. To him, there is what is called
‘spirit of the people’ or ‘volkgeist’ which binds people of a particular society together,
distinguishing them from other group of people. For a law to be valid, the history or custom of
the people must be taken into contemplation.

According to this theory, law evolves over a period of time and is rooted in the history of the
people becoming part of their everyday life. Therefore, it becomes difficult to change what the
people have known over the years to be part and parcel of them. They opine that a law which
does not reflect the historical antecedents of people will lead to unpredictable result, radical
change and even revolution.21

The rationale for postulating that law should be rooted in custom is based on the assumption that
rules of customs are fair, rational and just. This may not be true in practice as there are customs
that are discriminatory or prejudices women for example in inheritance and labour matters.22 In
Nigeria, even after a rule of custom has been established as accepted in the community, to be
applicable, such custom must pass the test for validity otherwise, categories of laws will be
rejected.23

The critics of this school are of the opinion that instead of making people’s custom or history to
determine what law is, laws made by the parliament instead should regulate people’s conduct.
They also opine that if law reflects customs, the problem of determining people’s custom will be
thrown up given the diversity of customs.24

1.3.4 Sociological School: To Eugene Ehrlich and other theorists of this school of thought,
societal conducts, values, norms determine what laws are and not necessarily what the sovereign
say they are or the rules posited or laid down. The implication is that where there are
discrepancies between societal conduct and the law, the law will not work as an instrument of

21
Malemi. op cit., 64.
22
Sanni, op cit 18.
23
Asein, J.O., Introduction to Nigerian Legal System 2nd ed (Ababa Press Ltd, Lagos. 2005)129.
24
Malemi, op cit., 64.

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social control.25 Since law is determined by society’s values, an appraisal of how such law is
obeyed, ignored, executed modified or supplemented by the society is important in knowing
what law is.26 For example, despite laws proscribing corruption with agencies like Independent
Corrupt Practice Commission (ICPC), Economic and Financial Crimes Commission (EFCC) and
enactments proscribing such act, some law enforcement officials still take bribes, contractors still
give ‘brown envelops.

The theorists also opine that since the conducts, values or norms are not static but constantly
change, the positive law should be constantly reformed to meet societal changing needs or
values.27

Roscoe Pound, a theorist of this school of thought but with views different from Ehrlich
postulates that there are several human wants and limited resources. In satisfying these human
wants, competing interests or claims should be balanced in such a way that it will cause less
harm to established institutions.28 Pound’s proposition of balancing interest has been criticized
because he failed to identify the competing interests or how the balancing should be done. In
addition, critics have opined that Pound’s proposition may not encourage long term planning.
Despite these shortcomings, the balancing theory is well received and used in courts in resolving
issues of competing interests and claims.29

Generally, the sociological theory has been criticized for postulating that positive law has no real
force of the law or creative value and always trailing societal conduct or norms.30 It is not true
that human or societal conduct always influence law as there are cases where law influences such
conducts. It is risky to use societal conduct define what law is or what law is not especially
where there are laws that penalizes such conducts, therefore an excuse that ‘everyone else is
doing it’ will not be tenable.31

25
Sanni, op cit.,19.
26
Ibid.
27
Malemi, op cit., 59.
28
Sanni, op cit., 21.
29
Ibid.
30
Malemi, op cit.,59.
31
Sanni, op cit., 20.

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1.3.5 Utilitarian School: Jeremy Bentham, one of the popular exponents in this school opined
that the purpose 32 of law is to promote communal utility (whatsoever affect people’s happiness).
He identified four main utilities (security, equality, liberty and abundance) the society should
promote and postulates that in making laws to attain these utilities, should weigh individual
interest against that of the state. Law should be used as an instrument of social engineering or as
a means of minimizing pain and increasing human happiness.33 This is done when the greatest
good of the greater number of people is promoted and individual’s interest is balanced with
communal interest. He suggested law reform or enactment to ensure these utilities are achieved.

The utilitarian teaches that when an individual’s right clashes with that of the state, the right of
such individual is subsumed to preserve the society. This is reflective under the doctrine of
necessity. Wrong actions may be taken for public good, in as much as it will lead to good result.
Critics have disagreed with this view holding that what is wrong is wrong and should not be
placated or coated with ‘public good.’34

1.3.6 Functional School: To Oliver Wendell Holmes ‘the prophesies of what the courts will do
in fact, and nothing more pretentious is the law.’ This theory emphasizes the fact that law is a
process; it is not a series of a particular command but rather a body of principles slowly evolved
by the decision of concrete cases. The creative role of the judges in applying law to new
situations or in interpreting statutory law is also emphasized.

It is the contention of critics of this theory that focusing on courts alone neglecting the law
making function of legislature and administrative agencies is misleading because the court itself
is created by statute.35

1.3.7 The Realist School: Oliver Wendell Holmes, Jerome Frank, Karl Llewellyn are some of
the theorists in this school of thought. The realists say in analysing law and legal system,
emphasis is usually placed on the legal rules leaving out the human factor. They opined that
provisions of the law in statute books are different from what is obtainable in courts. To them,
the judicial process is not an objective exercise as it may look in theory because extra judicial

32
Ibid, 22.
33
Malemi, op cit., 52.
34
Ibid, 57.
35
Sanni, op cit., 23.

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factors influence judges in decision making or in arriving at their judgment. Likes, dislike, skin
colour, age, demeanor of accused or his counsel, inclination of a judge to distinguish, ignore or
interpret precedents in a particular way are some of the prevailing extra legal factors.36

The criticism leveled against the theory is the fact that attention is placed on court alone
neglecting the legislature and executive.

In conclusion, it is important to state that the schools of thought discussed as well as the theories
expounded by the various philosophers were discussed from different viewpoints. Some of the
theorists were clergymen, judges, economists, among others and their different backgrounds and
orientations were reflected in their discussions of law. There is no better theory of law in that
none is entirely right or wrong. Each of the philosophies come with their high points or
advantages and weaknesses or criticism. In the words of Prof. Okunniga:37
‘Nobody including the lawyer has offered, nobody including the law is offering, nobody
including the lawyer will ever be able to offer a definition of law to end all definitions.’

1.4 OBJECTIVES OF LAW

Objectives of law are the goals intended to be attained with the instrumentality of law. A few of
these objectives are discussed below:

1.4.1 Law and Order:

The basic function of any responsible government is the maintenance of law and order as well as
the protection of lives and properties within its territories. Where this is not attained, there will
be anarchy and chaos.38 It should be noted however that the presence of anarchy or chaos does
not mean the absence of laws but its ineffectiveness or non enforcement.39 Law and order is
therefore maintained where the law enforcement officials and those charged with administration
of justice carry out their duties diligently and effectively. Whether in times of war or season of
peace, order is maintained with the use of law.

36
Ibid., 24.
37
Okunniga, A.O Jurisprudence (unpublished) cited in Sanni, ibid., 25.
38
Sanni, 32
39
ibid

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1.4.2 Law and Legitimacy:

Law prescribes the lawful way of exercising State powers and functions. Legitimacy means
lawfulness by virtue of being authorized or doing something in accordance with the law. The
Constitution stipulates that Nigeria shall not be governed ‘. . . except in accordance with the
provisions of this Constitution.’40 Currently, the idea of legitimacy is no longer based on legality
per se but tilting towards the rule of law accepted by those who administer the system and the
population. This implies that for a government to be considered legitimate, the citizens must
accept the fact that their leaders have been given mandate to rule them.

1.4.3 Law and Sovereignty:

Sovereignty is the supreme, absolute and uncontrollable power by which any independent state is
governed.41 In Nigeria, sovereignty belongs to the people and it is through them the government
derives all its powers and authority.42 Sovereignty is expressed in the ability of citizens to change
their leaders through peaceful (election) or violent means (revolution).

1.4.4 Law and State:

A State is an organized territorial unit with a stable population under the authority of a
recognized or sovereign government. The law defines the political structure of a State,43 defines
the extent of the organs of government and regulates their relationship with one another. The
internal affairs of a sovereign State is hardly meddled with in as much as the interests of the
other sovereign States are not affected by the act or inactions of the sovereign State.

1.4.5 Law and Freedom:

Freedom is liberty from restrictions or limitations. Law recognizes the fundamental human rights
of citizens and regulates such freedom in such a way that the interest and objectives of the State
is advanced. It should however be noted that the rights advanced are not absolute this is because
where freedom is left unrestrained, the probability of encroaching on other people’s rights or

40
Section 1(2) Constitution of the Federal Republic of Nigeria (as amended)
41
Blacks Law Dictionary 6th ed ( West Publishing Company, 1990)1396
42
Section 14(2)(a) 1999 Constitution
43
Section 2(1) Constitution

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misusing such is high. For example, though there is political freedom, unregistered voters can be
disenfranchised

1.4.6 Law and Justice:

Justice is the proper administration of law.44It means fairness, rightness, what is just, good or
reasonable. Law seeks or strives to achieve justice. This could be done strictly without any extra
legal considerations (formal justice) or imputing discretion to mitigate the harshness of the law
(substantial justice).

1.4.7 Law and Morality

Morality is the principle governing right and wrong behaviours; it is the ultimate principle for
judging social behaviors.45

An act may be morally wrong but not in breach of the law. For example prostitution may be
morally wrong, but may not be legally wrong if it does not breach a written law. The court in
Aoko v. Fagbemi46 held that adultery was not a criminal offense because it was not defined as
47
such or its punishment written down. Law can be used to regulate and protect public morals
from being corrupted. In DPP v. Shaw48 where ‘Shaw was charged with and convicted of the
offence of ‘conspiracy to corrupt public morals,’ the court opined that ‘a residual power to
enforce the supreme and fundamental purpose of the law, to conserve not only the safety and
order, but also the moral welfare of the State.’

2 CLASSIFICATION OF LAW

Features of law are understood better with the classification of law. The study of law is also
simplified for better understanding because the classified categories are interrelated and overlap
in real life situations. Human or man-made law can be classified into different categories:

44
Blacks Law Dictionary op cit, 864.
45
Sanni, 47.
46
(1961) 1 All NLR 400.
47
Section 36 (12) Constitution(as amended).
48
(1962) AC. 220.

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2.1 Common Law and Equity:

Common law as a category of law comprise all the laws developed by the Old Common Law
Courts of England (the King’s Bench, The Court of Common Pleas and the Court of Exchequer).
They originated from the practice or customs common and peculiar to the people of England
which were applied as case laws. The application of common law was criticized for being too
strict leaving a lot of litigants without remedies because of this Equity which was formulated by
the Court of Chancery evolved to mitigate the harshness of common law.

2.2 Written and Unwritten Law:

Written laws are laws formally enacted as statutes or subsidiary legislation by the law making
body or charged with the responsibility of making such. They can be found in a single document
or a combination of several others. They are also called different names depending on who or
when it was enacted (Ordinances, Edicts, Decrees, Laws, Acts etc). The Constitution is

Unwritten law can mean laws, norms or conventions not written down or those that are partly
unwritten. They comprise body of rules observed by the people and administered in the courts
but which has not been passed in the form of statute law. Customary laws, Common law of
England, and judicial precedents fall under this category.49

2.3 Substantive and Procedural (Adjectival) Law:

Substantive law are body of rules that defines a code of conduct and prescribes the penalty for its
violation. It defines the rights, privileges or duties of individuals and bodies recognized by the
law as well as stipulates their corresponding duties. Examples are law of contract, company law,
administrative law, constitutional law etc. Procedural law on the other hand is concerned with the
method or procedure to enforce or give life to the substantive law. It is concerned about the
administration of substantive law that is, how action is initiated in court, how trials are
conducted, how judgment is given and how such judgment is subsequently enforced. Example of
this category of law can be found in the Rules of Courts, Evidence Act 2011, Administration of
Criminal Justice Act 2015, Sheriff and Civil Processes Act etc.

49
Malemi, op cit.,113

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2.4 Public and Private Law: Public law regulates the relationship between the State and its
citizens, in this relationship the State is higher in legal status than the other. It is concerned
about the smooth operation of the machinery of State and consequently caters for cases where
the interest of the society is directly involved.50Examples of public law are: Administrative law,
Constitutional law, Criminal law, International law among others.51 Conversely, Private law is
concerned about the protection of rights and duties of private individuals, association of persons
or corporate bodies,52 examples include Consumer protection law, Commercial Law, Family law,
Law of Evidence, Law of Contract, Law of Tort, Law of Sucession, Wills and Probate,Trust etc.
Public law

2.5 Civil Law and Criminal Law:

Civil law encompasses the whole of private and public law with the exception of criminal law,
military law, martial law or emergency law.53 This aspect of law ensures that individuals who are
injured by the wrongful act of another are compensated for damaged suffered. 54 Equitable
remedies that placate the injured party or restore him to his previous status like damages,
rescission, specific performance, restitutio in integrum, injunctions are available under this
category. Criminal law on the other hand is the law which protects public interest by punishing
certain conducts believed to be harmful to the society. The commission of prohibited acts is met
with heavy sanction or punishment of varying degrees like imprisonment or remand (custodial or
non custodial), fines, death sentence, deportation (foreigners), forfeiture, corporal punishment or
caning, etc.55 It is the requirement of the constitution of Nigeria that criminal law as well as the
penalty for its breach be codified.56

2.6 Domestic Law and International Law

Domestic laws are national or internal laws of a particular country; they are laws emanating from
a sovereign state, having the force of law within the territory of the sovereign state. 57 While

50
Asein, op cit., 18
51
Sanni, 64
52
Malemi, op cit, 108.
53
Ibid, 112
54
Sanni, 65
55
Akinbiyi, S., Crimes, Defences and Sentences 1st ed (Streams Communications, Lagos. 2006)333
56
Section 36(12) 1999 Constitution (as amended); Aoko v. Fagbemi (1961) 2 All NLR 400
57
Asein, op cit., 20

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international laws are laws governing or regulating the relationship between sovereign states or
between sovereign states and international organisations. International law comprises of
customary rules of international law, treaties or agreements entered into by sovereign nations and
which bind them.58 Although they impose obligations on states that are party to them, they do not
necessarily become laws regulating citizens or institutions of state parties without local
domestication. According to Yakubu, ‘treaties and conventions are by-products of agreements
between states. Validly made treaties and conventions, upon ratification and adoption, become
part and parcel of most municipal laws.’59 They become binding when enacted into law by the
National Assembly and ratified by all Houses of Assembly of states of the federation. In Abacha
v. Fawehinmi,60 the African Charter on Human and Peoples Rights (an international instrument)
was held to be superior to domestic laws including the military government’s Decrees and Edicts
because it has been enacted into law.61

3.0 METHODS OF SOCIAL CONTROL THROUGH LAW

Methods of social control through law simply means how the society can be controlled through
the instrumentality of the law. In every society, conflict is bound to happen but they are resolved
through laid down principles or law. The establishment of order in a society is a foundational
requirement to control or regulate the conduct of various groups in a society. It is an atmosphere
of social order that human effort to harness all potentials for development can be rewarded.

Note that it is in this aspect that the discipline of law is primarily concerned with human
interactions and order in the society. Law seeks to control not only human beings but also human
institutions some of which are direct creations of the law itself. For instance Achievers
University is an establishment of the law, the NUC presented the school’s document to NEC and
then the president declared the school open. i.e a law was made to permit the operation of the
school and the school is subject to that law e.g the school may not be allowed to admit more than
30 law students.

58
Ese Malemi, ibid, 15
59
Yakubu, J.A. Within and Without: The Relevance and Potency of the Law beyond our frontiers.’(University of
Ibadan Press, 2006) 90
60
(2001) 51 W.R.N 29
61
See section 12(1) of the Constitution (as amended)..

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Social control may therefore be described as the control of social behavior of some people as
they affect others. The term ‘social control’ is a technical expression coined by sociologists.

The seven (7) methods of social control through law are discussed below:

3.1 Penal Technique: it involves rules prohibiting certain deviant behaviours. Under this
technique, specific rules of conduct are spelt out, sanctions that lead credence to the law are
made known with designated officials or institutions mandated to interpret as well as enforce
the laws.

The primary purpose of law here is to secure conformity to its precepts and discourage deviant
behaviours. 62As deviants cannot be totally removed from the society, penal techniques are put in
place to discourage deviant behaviours and make certain vices unappealing. The question may
be asked ‘how does the penal technique bring about social control through law? The technique
may look good in theory but to what extent has it succeeded in curbing deviant behaviours in the
face of the increasing wave of crime in the country? This brings us to the alternatives the law has
brought to curb crime.

a. Non intervention: even though it is desirable, it is not possible for the society to
penalize all deviant behaviours.63 Some criminals may require moral persuasion in
such cases, application of penal technique may be thought to be impracticable, and
the state will not intervene.64
b. Warning: instead of imposing the deserved punishment on the offender, a simple
warning may suffice especially for first time offenders, children or aged. For example
someone who make noise in court or whose mobile phone rings in court may simply
be warned or the phone seized by the court officials instead of strictly penalizing such
individual for contempt of court.
c. Reciprocity and Self Help: this entails leaving the aggrieved party to obtain his own
appropriate redress on the basis of reciprocity. This is usually the case of jungle
justice-seeking vengeance by one self. Although this is illegal but in Nigeria due to
delay in justice, people carry out jungle justice, lynching, mob action is common.

62
Sanni.,85
63
Sanni., 88
64
See Aoko v. Fagbemi (1961) 1 All NLR, 400

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 This can happen as self help or self defence for example if you kill a gang of robbers
who came to rob you, its called reciprocity. This system gives judgment without fair
hearing and can lead to breakdown of law and order.
d. Compounding: is another alternative to penal technique whereby there is a receipt of
some property or other consideration in return for an agreement not to prosecute a
criminal.65 For example an employee who defrauds the company where he works may
be summarily dismissed instead of being prosecuted where he agrees to return the
sum unlawfully appropriated.
3.2 Grievance Remedial Technique: this is unlike the penal technique which applies to public
or criminal law. Grievance Remedial Technique applies to civil law or law of torts. It has to
do with family law, trust and equity, law of contract, labour law. Civil wrongs are sanctioned
and civil remedies provided for aggrieved persons. Remedies available to an aggrieved
person are numerous (general damages, injunction, restitutio in integrum, recission, specific
performance, private settlements) depending on the nature of the rights violated. This
technique provides a platform for the adequate compensation of an aggrieved party. The law
will discourage jungle justice and self help.
Alternatives:
a. Penal Technique: there are some conducts that amount to crime and at the same time
civil wrong. The old wisdom was that actions in tort cannot be brought against a
defendant until he has been prosecuted for the criminal action. Until an accused have
been prosecuted for the crime (felony) committed, no action in tort will lie against him.66
The application of this principle appears unsettled because in the case of Tika Tore Press
Ltd v. Umar,67 the rule in Smith v. Selwyn was not followed as the court refused to stay
proceedings in the civil suit pending the completion of criminal case.
b. Private arrangement: parties especially in cases where there is a prior agreement may
have provided their own private system to deal with disputes in the agreement. Where
these terms are implemented, litigation is avoided but if the scope is too wide or parties
eventually disagree on certain terms, they may resort to litigation e.g hire purchase,
tenancy agreement.

65
Blacks Law Dictionary., op cit.
66
Smith v. Selwyn (1914) 3 K.B 98.
67
(1968) 2 All NLR 107

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 c. Insurance: under insurance, matters can be dealt with in terms of the insurance policy
undertaken by parties. Instead of litigation, the insurance companies sort themselves out.
d. Arbitration: It is a form of alternative dispute resolution. When an arbitration clause is
inserted in cases of disputes, the parties resort to arbitration first before litigation. Parties
who are not satisfied with the arbitral award can approach the court to set it aside.
Arbitration has its high points in that, it is an informal means of settling dispute which
provides amicable settlement using technical experts; it ensures secrecy and expediency
usually adopting an informal setting.
3.3 Private Arranging Technique: is about the law helping individuals undertake certain
activities that are not expressly forbidden. Once you decide to arrange your affairs under a
system, compliance with the rules of the system is important otherwise the action undertaken
will be invalidated. The technique covers areas of civil law like family law, company law,
banking law, law of trust, law of partnership, commercial law, law of contract etc.

For marriage, a statutorily married individual cannot get married to another person during the
subsistence of the first marriage see section 33 and 45 Marriage Act. Also, in making a will, the
testator signs in the presence of at least two witnesses present at the same time.

Ordinarily, under this technique, there is no government intervention but things are changing for
example, by virtue of the Child Rights Act, government now interferes in welfare and care of
children to curb child abuse. With the Sale of Goods Act, government interference is now
necessary to achieve fair trading.

3.4 Constitutive Technique: This is an offshoot of the private arranging technique. Here, social
order is fostered when efforts and resources are pooled together by a group of people to
achieve a desirable social end which could be promotion of commerce, social and cultural
objectives.68 The society is regulated where government make laws that creates conducive
environment for people to live, work, transact business and generally carve out a decent
living for themselves.69This technique is used for formation of companies, incorporated
trustees of religious, educational or socio cultural organizations. Enabling laws under this
method which creates enabling environment for private initiatives and self actualization are

68
Sanni, 98.
69
Malemi, 226

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 Arbitration and Conciliation Act, Banks and other Financial Institutions Act, Companies and
Allied Matters Act, Investment and Security Act etc.

One of the characteristic feature of this technique is the creation of a new legal personality
different from its individual members.70 It can own properties, sue and be sued in its corporate
name. The court in Salomon v. Salomon71 held that a limited liability company is a separate legal
entity and is a legal person with its rights and duties different from the shareholders. Since a
corporation is a creature of statute, it enjoys only such powers and privileges conferred on it by
the statute.72 Any contract not authorized by a corporation’s constituting organ is said to be
ultravires (beyond its powers) and not binding on the corporation even if all its members ratify
it.73 The law now provides a legal frame work for recognising certain collective interests of
groups (like political parties, labour unions, partnerships, and professional bodies) without
vesting them with legal personality.74

3.5 Administrative Regulatory Technique: There are certain areas of life where it is desirable
to maintain a minimum standard in the overall public interest or public health. Government
either monopolizes the sector or regulates operations of private owners through
administrative regulatory technique. For example, National Agency for Foods and Drugs
Administration and Control (NAFDAC) is charged with the responsibility of ensuring safety
standards for food, cosmetics, and consumables; Federal Road Safety Corps (FRSC) ensures
safety on federal roads; National Film and Video Censors Board ensures and enforces
standard in film and video production. Other government regulatory agencies include
Department of Petroleum Resources (DPR), Joint Admissions and Matriculation Board
(JAMB), National Universities Commission (NUC), Nigerian Communications Commission
(NCC), Standards Organization of Nigeria (SON) etc.

It should be noted that while penal technique prohibits and sanctions anti social behaviours, this
method of social control regulates wholesome activities. The steps adopted by these agencies in
this regulation may include: licensing, inspection, warnings, revocation of license, administrative

70
Salomon v. Salomon (1897) AC 22
71
(1987) AC 22.
72
Oputa, G.U Achike on Contract (Justice Watch Abuja, 2014). 242
73
See Sections 38 and 39 CAMA, LFN 2004
74
Ajibo, K.I., Legal Method www.

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proceedings or litigation.75 In addition, while the Grievance Remedial technique is invoked
usually to ‘remedy’ or cure a wrong or grievance after it has happened, the Administrative
Regulatory Technique prevents harm from taking place and in doing this, government do not
necessarily need to identify the wronged party as the rules are applied without waiting for
victims to formally complain.

The court in WAEC v. Mbamalu76 validated the decision of the appellant barring the respondent
from taking the Council’s examination for three years and cancelling her entire result for alleged
examination malpractice. The court opined that it would only intervene in decision handed down
by appropriate body where such is manifestly unjust.

In upholding the rules of natural justice, the court in Garba v. University of Maiduguri77 held that
only a court of law or judicial tribunal can hear and determine criminal charges against the
appellants (expelled students) before any disciplinary action can be taken by the respondent
against them.

The Court of Appeal in Nigerian Communications Commission v. MTN Nigeria Limited78 held
that where there is a precondition stipulated by statute before filing an action in court, such
precondition or mechanism must be fulfilled or exhausted, otherwise the action will not be ripe
for hearing.

3.6 Fiscal Technique: Taxation and other fiscal measures are used by government as a means of
regulating the society. Taxation is a means through which government revenue is enhanced,
income generated and economic growth stimulated. The government raises money to finance
its spending by legislation which imposes a variety of levies on people. Some taxes (Personal
income tax, Companies income tax) are direct and fall on natural and legal persons. Some
fall on properties (death duties) while others are indirect (Value Added Tax).
It is important to state that for any tax to be payable, it must be imposed by law.79Tax evasion
or nonpayment of tax by people who are duty bound to pay is illegal.80

75
Sanni, 101
76
(1992) 3 NWLR (pt.230) 481
77
(1986) I NWLR (pt.71) 447
78
(2008) 7 NWLR (1086) 229
79
Malemi, op cit.,240

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Fiscal technique has been used in modern times to bring about social order and discourage anti
social behaviours.81 For example, the imposition of VAT on alcoholic substances can lead to a
reduction in its consumption, imposition of heavy taxes on non-essential imported goods like
Italian furniture will promote preference for locally made furniture and open lines of
employment opportunities for people.

Government agency responsible for administration of taxes is Federal inland Revenue Service
(Federal government) and similar agencies at various state levels (Lagos Inland Revenue
Service, Ondo State Board of Internal Revenue Service).

3.7 Conferral/Social Benefit Technique: Government spends money raised by the application
of the fiscal technique on a wide range of benefits and services like construction of road,
education, housing, health care, social security. Electricity etc. Law and order is maintained,
social strive is reduced and patriotism enhanced where the welfare of citizens are secured.

Example of social schemes or programs developed by the government to alleviate citizen’s

poverty are Low Cost Estate (Jakande Estate, 1004, Shagari estate), Universal Basic Education
Program, National Primary Health Care System, Family Support Program, Better Life for Rural
Dwellers Program, National Health Insurance Scheme, Niger Delta Development Commission,
OSOPADEC, Urban Mass Transit Program, LAMATA, Bus Rapid Transit, Sunshine Express,
Edo Line etc.

Although most of these programs did not alleviate peoples poverty because of poor
implementation and corruption, it is important to still note that the programs are laudable efforts
as they are welfare-oriented. The goal of this technique is aimed at re-ploughing back to the
society the benefits of the fiscal technique as funds accruing to government from the fiscal
method are utilized for social amenities and other public welfare services.

4.0 LEGAL REASONING AND APPROACH TO PROBLEMS.

While ‘legal’ is anything related to or characteristics of law, ‘reasoning’ means abstract thought,
logical thinking; Thinking that is logical and coherent. It is not in doubt that humans are

80
R v. Dealy (1995) 1WLR 658
81
Sanni., 103

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reasoning beings. Apart from acts or omissions done accidentally or involuntarily, hardly will a
human being embark on any venture without counting the cost or analyzing its repercussion or
effect.

Lawyers also reason, they are deliberative, inquisitive and argumentative. In advancing their
profession, the act of legal reason is therefore important. Legal reasoning can therefore be
defined as a logical, analytical, coherent presentation of legal issues.

4.1 The Language of Law.

Lawyers use words to give expression to law and to generally communicate (verbal or written)
that is why we say words are the tools of trade of lawyers. Legal language has several attributes
which set it apart from ordinary language. These are discussed below:

1. Words can be expressed using general terms common and known to the public. Here,
words are given their literal/ordinary meaning. For example section 33 (1) of the 1999
Constitution provides that: ‘Every person has a right to life, and no one shall be deprived
intentionally of his life, save in execution of the sentence of a court in respect of a
criminal offence of which he has been found guilty in Nigeria.’ This is clear enough and
cannot be misinterpreted because unambiguous general terms are used.
2. Common words may be given special or technical meaning. For example a lawyer says ‘I
have a suit (matter) in court’ instead of saying he has a ‘case’ in court, ‘I submit with
utmost respect’, ‘I crave your indulgence’, Lawyers don’t ‘talk’ in court but they make
‘submissions’.
3. Law make use of latin/French words and phrases in its expressions this is because foreign
languages/countries influenced English law at its early stage and over the years most of
these borrowed languages stuck. Examples include Consensus ad idem- agreement. Audi
alteram patem- hear the other party, Nemo judex in causa sua- you cant be a judge in
your own cause/matter, Nemo dat quod non habet- you cant give what you don’t have.
4. Verbose and long words/sentences are used even where few simple sentences or words
suffice. Common examples of verbose statements are phrases like:’lying, known ,being
and situate at….’ or ‘to have and to hold…’ used commonly in legal agreements.

22 | P a g e
 5. Abstract concepts are used in law to convey specific ideas, impression or meaning.
Instead of making long-winded explanations or giving details of the scope or structure of
such concepts, words are economized as few words are used to convey specific
meanings. Examples are Rule of law, separation of powers. Separate legal personality,
Natural justice, Fundamental Human Rights etc.
6. Use of slangs, jargons with special or peculiar meanings understood by people in the
profession. For example when a lawyer says ‘I am speaking from the bar’(He is speaking
the truth). Or ‘my brief has not being perfected’(professional fees has not been paid)
7. Use of archaic English words similar to the language of Shakespeare or King James
Version of the bible like hereinbefore, hereinafter, aforemention, thou etc.
8. Frequent use of resonant formal words: Witnesses in court swear or affirm to ‘speak the
truth, the whole truth and nothing but the truth’.

Apart from the formal nature of the language of law which has been criticized for being out
of touch with modernity, lawyers and judges wear dark coloured clothes and gowns with wig
and at public sittings are expected to be formal, fit and proper individuals. Even though some
of the formalities attributed with law may be justified, in combination with several other
factors, they have unduly mystified justice administration shutting out the ‘unlearned’
populace from learning about or understanding law.82

4.2 METHODS OF LEGAL REASONING.

1) Rules and principles of law:

A principle83 is an established legal proposition or truth which serves as the basis for the
development of legal rules while a legal rule is a specific application of a legal
principle.84Lawyers apply the law, legal principles and rules to cases or situations they are faced
with. A lawyer will determine the applicability or otherwise of this rule or principles of law to
life issues he is handling. When this is carefully done, he is able to bridge the gap and know

82
Sanni, 117
83
Examples are principles of Rule of law, Separation of powers. Separate legal personality, Natural justice,
Fundamental Human Rights
84
Sanni, op cit., 119

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whether there exist a remedy or defence for his clients or whether there is a loop hole in the law
which requires law reform or amendment.

2) Legal Rhetoric

Rhetoric is the art or technique of using language effectively to persuade or influence someone.
A lawyer must have the ability to argue sensibly, the manner in which he presents his case is also
important. Legal rhetoric therefore, is any legal document, argument or speech meant to persuade
the court or another person. This can be done either orally (speech) or in written form. Plato
defined rhetoric as ‘the art of winning men’s mind with words.’85 Aristotle divided the term into
two: ‘forensic’ and ‘deliberative’ rhetoric. Forensic rhetoric is adopted when lawyers put their
oratory skill to use in persuading the court to adopt their view or protect the interest of their
client. While deliberative rhetoric is used by judges. A Judge’s ability to be deliberative or
dispassionate will make his decisions stand the test of time and scrutiny of an appellate court.

There are other categories of rhetoric: Ceremonial Oratory Rhetoric (which is an art of praising
or censuring someone) and Political rhetoric (adopted by politicians when canvassing for votes).

Apart from being good with words, legal rhetoric requires knowing the law and how it should be
applied. This can be achieved by citing appropriate judicial or statutory authorities to justify a
legal stance. These skills are not innate but acquired and constantly sharpened through
professional training, continuous legal education, experience gathered through the years,
diligence and perseverance. There is no born lawyer, through diligence, patience and general
application of legal techniques, lawyers are made, lawyering skills are acquired and sharpened.86

3) Legal Logic:

Logic is the art of careful thinking and correct reasoning.87 It involves careful thinking,
reasoning, presentation of arguments and the drawing of conclusions using formal rules.88 A
lawyer who knows the law and its principles, have oratory skills but do not know how to present
his case in a logical manner may not do well. Legal logic therefore is important for lawyers and

85
Sanni, op cit, 119
86
Sanni, 120.
87
Malemi, op cit., 259
88
Ibid,

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judges as it helps in identifying bad arguments that could mislead the court to arrive at wrong
decisions.

4) Deductive reasoning (logic) or syllogism:

This is a reasoning where conclusion is reached from two existing

premises/facts/propositions/information. The propositions are related/linked together in such a
way that the first two leads to the third. Deductive reasoning can also be described as a way of
arguing from a general /major proposition to a particular/specific conclusion.

All lawyers are liars ……Major premise…………Good men don’t live long
Mr Otitokoro is a lawyer…Minor premise…………James is a good man
Mr Otitokoro is a liar…......Conclusion……………James will soon die/James will not live long

Anyone who enters into a same sex marriage contract or civil union shall be sentenced to terms
of imprisonment………………………………………...major premise section 5 (1) SSMPA
Mr Gold recently got married to Mr Diamond………….major premise
Mr Gold and Mr Diamond must be imprisoned………….conclusion
Using deductive reasoning in practice, the major premise is gleaned from the statute. After
establishing that his client’s case falls within the scope of the enabling law, counsel applies the
law to his client’s case and arrives at the conclusion.

It should be noted that deductions or conclusions made from deductive reasoning may be valid or
sensible but they may not be true. Logic is not the same as truth. This is one of the
drawback/limitation of syllogism as a method of legal reasoning. Deductive reasoning is only
applicable once a clear major premise has been established and it is applicable where the subject
matter to be interpreted is a statutory provision. In practice, where a lawyer is able to distinguish
truth and validity, he will be able to spot a lying (though logical) witness and discredit same.

Another limitation of syllogism is that once a wrong proposition is established as the truth or
major premise, then the conclusion/judgment will be wrong.

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All brilliant law graduates go to law school………...Major premise
Ibrahim is a brilliant law graduate…………………....Minor premise
Ibrahim is in law school…..........................................Conclusion

The above proposition may be valid but wrong. This is because certain factors (like the quota
system, ill health or nonpayment of school fees) may prevent Ibrahim from going to law school
even though he is brilliant.

The third drawback is that a statement may be logical in one situation and be illogical in another
context
A man is a human being……………………..Major premise
A woman is a human being…………………....Minor premise
A man is a woman …..........................................Conclusion

5) Inductive reasoning:

This is a method of reasoning from specific premise to general premise. Conclusions are drawn
from specific information or fact. As opposed to deductive reasoning, inductive reasoning is
reasoning from a particular minor or specific premise to a major/general premise.

Tinuke from Ondo town is a stubborn girl……..Specific fact/ minor premise

Therefore, all Ondo indigenes are stubborn……...Conclusion

In painting a scenario of inductive reasoning, this is instructive: Ogah, a thirty year old young
man was charged, found guilty, convicted and sentenced to death by an Owo High Court. While
his appeal was pending before the Court of Appeal, Akure Judicial Division, he was promptly
executed. The line of argument by the counsel will be similar to this:

• In the case of Bello v. AG Oyo State,89 the Supreme Court decried the hurried and
premature execution of one Nasiru Bello despite his pending appeal. The court described

89
(1986) 5 NWLR (Pt.45) 828

26 | P a g e
 the execution as a ‘reckless disregard for the life and liberty of the subject and the
principle of the rule of law’90 as well as being ‘unconstitutional and unlawful.
• A similar position was held in Forum of Conscience v. Sierra Leone91 where a Court
Martial tried, convicted and sentenced some 24 soldiers to death, allowed no right of
appeal and publicly executed them.
• These cases are similar to the case at hand, violation of the right to life without due
process amounts to arbitrary deprivation of life. Although legal process cannot bring
Ogah back to life, his dependants are entitled to be compensated.

A lawyer who relies on an established judicial decision and cites same in court by showing that
his client’s case is similar to the cited case or established principle is adopting inductive
reasoning. Therefore if a lawyer is advising on the application of a particular case law, he will
first use inductive reasoning to find a particular general proposition of law and then deductive
reasoning to determine how it applies to the fact.

6) Analogical reasoning

Analogical reasoning is a loose form of reasoning used by judges and legal advisers when they
argue or compare two similar decisions showing that previous decisions may be sufficiently
similar or related but are not relevant to the issue in question. This form of reasoning moves from
inductive reasoning to being analytical.

4.4 LEGAL REASONING AND PRACTICAL REASONING.

Practical reasoning is the ability to reason and act sensibly unlike legal logic which is systemic.
Practical logic makes frequent use of analogy, several external factors are considered before
arriving at a decision. Everyman has an innate sense of practical reasoning which the formal
study of logic improves upon. While logic is learnt formally, practical reasoning is informally
learnt and gets better with age and experience.

90
Ibid, at p. 860, per Aniagolu, JSC.
91
(2000) AHRLP 293. Communication 223/98 www.hrlibrary.umn.edu/africa/comcass/223-98.html accessed 28
January, 2010

27 | P a g e
In practical reasoning, conclusions may not be concerned with validity or correctness but
influenced by personal preferences, lifestyle, perception, custom etc while in logic, conclusion is
usually valid and it does not concern itself whether it is true or false.

In conclusion, legal reasoning entails legal logic and something more (practical reasoning) both
are useful in determining legal issues before coming to a justifiable conclusion.

4.5 JUSTIFICATION FOR LEGAL REASONING.

In deciding a case (dispute resolution) a judge relies on a number of factors. He considers the
evidential value of the case; the arguments canvassed (case laws cited) and juxtapose them with
the established legal principles. Judges no longer solely rely on logic or cases cited before
arriving at a decision. Extraneous factors like acceptability of decision in line with public policy
(public good), rational decision or the compatibility/consistency of such judgment with existing
authorities/principles of law are considered.

From the foregoing, it is clear that the predictability of court cases is an uphill task because of
the several factors that are capable of influencing a court decision. Apart from logic, many other
factors are utilized in legal reasoning.

5.0 LEGAL REASONING IN JUDICIAL PROCESS.

In our everyday interaction with people, disagreements, controversies, disputes are bound to
happen this is because our level of tolerance differs; no two individual have the same habit or
character. In order to keep within the scope of law and avoid jungle justice, disputes are
submitted to formal institutions (like the court or arbitral panel) for resolution especially where
disputing parties cannot settle themselves.

The judiciary is the third arm of a democratic government vested with the responsibility of
interpreting and applying the law. Settlement of disputes, maintenance of law and order,
dispensation of justice, among others are some of the functions of the judiciary which is also
known as the temple of justice.

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Legal reasoning in judicial process is the process of careful thinking by a judicial officer in the
course of resolving issues brought before the court for determination. Legal reasoning in judicial
process is concerned with the administration of justice; justice is fairness, it is the proper
application of the law in resolution of legal issues. Justice is an important tool of legal
reasoning.92

In the case of R v. Sussex Justice Exparte McCarthy93 per Lord Hewart:

“Justice should not only be done, but should be manifestly and undoubtedly be seen to
be done…”

Some of the concepts that affect legal reasoning in judicial process are discussed below:
5.1 Burden of Proof.

It is the obligation of whoever brings an action to court to persuade the court to give judgmentin
his favour. In law, he who asserts must prove. It is the duty of the person who claims the
existence of a thing to prove it. This is usually expressed thus: ‘affirmanti non neganti incumbit
probatio’ which means the burden of proof is on the person who claims and not on he who
denies. See section 131 Evidence Act, 2011.

Admitted facts need no further proof, only disputed matters or facts in issue are proved. In civil
cases, legal burden of proof is usually on the plaintiff who claims the defendant has done him
civil wrong which needs to be remedied.

Evidential burden is the burden to give evidence on disputed issues or facts. It is not static but
shifts from one party to the other until the case is concluded. The onus of establishing further
evidence is on the person who would fail if such evidence were not produced.94

Parties are expected to prove the existence or non existence of fact in issue and facts relevant to
facts in issue.

5.2 Shifting of Fact in Civil Cases.

92
Sanni, 167
93
(1924) 1 KB, 259
94
Nigerian Maritime Services Limited v. Afolabi (1978) 2 SC 79 at 84

29 | P a g e
Only ‘facts in issue’95 need to be proved. Here, the burden of proof is generally but not always
on the plaintiff; he who affirms must prove (Affirmanti non neganti incumbit probation). In
establishing his case, the plaintiff must prove the facts that are in issue particularly where they
are not admitted by the defendant. Where defendant denies facts put forward by the plaintiff, the
burden of proving the denied facts rests on the plaintiff.

Where defendant admits fact/allegation and proceeds in supplying new facts to justify his action,
the onus lies on him to prove the new facts. This is called confessing and avoiding plaintiff’s
averment.96 The burden can shift from one party to another until the court is satisfied that facts
have been proved. Standard of proof is based on balance of probabilities or preponderance of
evidence.

5.3 Shifting of Facts in Criminal Cases.

The burden of proving the existence of fact in criminal matters lies on prosecution and does not
shift to the accused. This is because the accused is presumed innocent until proven guilty. 97 The
standard of proof required here is proof beyond reasonable doubt.98

It is not for the accused or defendant to prove his innocence but the burden is on the prosecution
to prove and establish that certain facts exist. The burden of proof shifts to the accused in
exceptional cases like:

• Where special facts are within the knowledge of the accused person like alibi.
• Where the onus of proving certain fact is specifically imposed on the accused by statute.
• Where accused raises defence of insanity and intoxication, thereafter it shifts back to the
prosecution to disproof it. Section 139(3)c Evidence Act
• Where accused raises defence or plea of autrefois convict or a pardon, then the burden to
establish such is on him.

5.4 Shifting of Law

95
Facts in issue includes any fact from which either by itself or in connection with other facts the existence, non-
existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily
follow. See section 258 Evidence Act, 2011.
96
Sanni, 172
97
Section 36(5) 1999 Constitution (as amended)
98
Section 135 (1) Evidence Act, 2011.

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This occurs during application of law to facts of the case. Ignorance of facts excuses but
ignorance of the law does not excuse (ignorantia facti excusat, ignorantia juris non excusat).

The law here includes statutes and case laws. Anyone who alleges the existence of the law and
intends to rely on it must specifically state that law in court. When a party relies on, cites a case
law without knowing it has been amended or repealed, the burden of bringing the notice of such
amendments or repeal to the court shifts to he who has prior knowledge of the repeal or
amendment.99

On the other hand, the judge is expected to always know the law and to be current as juria novit
curia (It is for the court to know the law). It has been said that the law lies in the bossom of a
judge and ignorantia judicis est calamitas innocientis (The ignorance of the judge is the calamity
of the innocent). It is therefore important for the judge to know the law for adequate dispensation
of justice.

Where counsel to parties in a case cites repealed law or fails to place reliance on relevant cases,
it is the duty of the court to put things right, the burden shifts to the judge. In ensuring justice is
dispensed and administered the judge must be able to determine when shift of fact or law occurs
in addition to ensuring that the burden of proving such fact or law is discharged.100

5.5 JUDICIAL PRECEDENT

Judicial Precedent is a doctrine that emanates from case law. In the course of the courts’ duty of
interpreting and applying the law to concrete cases and statutes, legal principles are formulated
and established these principles are called judicial precedent. Judicial precedent is simply a
system where decisions of superior courts are binding over all courts of subordinate jurisdiction
in a particular legal system. It is the judgment or decision of court cited so as to justify a decision
in a later apparently similar case.101 It is the principle of law on which a judicial decision is
based. The doctrine of judicial precedent involves an application of the principle of stare decisis
that is to stand by the decided; predictability and consistency of law is guaranteed where
precedents are allowed to evolve and grow.

99
Sanni, 175
100
Sanni,. 176
101
Ogundele, L.O. Elementary Principles of Law (Balfak Press, Ado Ekiti. 1998)18.

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5.5.1 TYPES OF PRECEDENTS

a) Original Precedent is created by the decision of the courts on any issue in respect of
which there has been no precedent. It establishes a new rule of law and usually occurs
where there are no existing precedents to be followed. Since nothing is new on earth,
these categories of precedents are not very common.
b) Derivative Precedent extends the frontiers of an existing rule of law to accommodate
similar or new cases where there is no direct authority on the issue of law under
consideration.
c) Declaratory precedent consolidates and gives credence to past decisions without
necessarily validating a bad precedent.
d) Persuasive precedent is a precedent which judges are under no obligation to follow but
which may be taken into consideration and to which they can attach such weight as it
seems to them to deserve.102 Persuasive precedents may be deduced from decisions of
foreign courts, decisions of coordinate courts or judicial dicta (statements of law which
go beyond the occasion and lay down a rule that is irrelevant to the purposes at hand or is
stated by way of analogy, merely, or is regarded by a later court as being unduly wide)103
e) Binding precedents are precedents which are not persuasive but authoritative. The court
in which the precedent is being advanced is bound to follow same where the legal
principled involved is the same and the facts are similar.

NOTE: A precedent may be authoritative in one court and persuasive only in another court. For
example decisions of Court of Appeal is binding on the High Court but merely persuasive for the
Supreme Court.

1.2 A precedent may be disregarded in any of the under listed ways:

1) Precedents are disregarded when they are overruled. This is an act of superior jurisdiction
as two courts of equal authority have no power to overrule each other’s decisions. An
overruled precedent is definitely and formally deprived of all authority. It becomes null
and void and a new principle is authoritatively substituted for the old. Overruling can

102
Ogundele, 19
103
ibid

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 occur where a later court considers that the rule of law contained in the previous ratio
decidendi is no longer desirable and therefore worthy of being discarded. The court in
Bucknor-Maclean v. Inlaks Ltd104 overruled decision taken in two previous cases105
because it considered the views expressed therein as capable of leading to considerable
injustice.
2) Precedents may also be disregarded where the court refuse to follow them in reaching
decisions. Where they are not followed, the result is not that the later authority is
substituted for the earlier, but that the two stand side by side conflicting with each other.
The legal antimony thus produced must be solve by the act of a higher authority, which
will in due time decide between the competing precedents, formally overruling one of
them and sanctioning the other as good law.106
3) Reversal this happens where decision of a lower court is upturned on appeal by a
superior court in the hierarchy of courts where this happens, the new decision handed
down by the appellate or superior court substitutes the earlier decision of the lower court
and creates a new precedent capable of being followed in the future.
4) Distinguishing Cases Whenever a judge is faced with situation necessitating him to
decline, deviate from or not follow an earlier precedent, he needs to distinguish the case
at hand from the earlier case law giving him free reign to make a decision in accordance
with the circumstances of the instant case before him. Distinguishing cases from each
other, do not call for express overruling of existing case law but a mere differentiation
of existing case from instant case because of dissimilar facts or legal principles. It is
noteworthy to mention that some courts tend to distinguish cases on inadequate grounds
especially where such authorities do not sit well with or are disliked by them.107
5) Per Incuriam A case decided per incuriam is one reached or decided without following
judicial precedents ‘through lack of care,’ mistake, carelessness, ignorance or
forgetfulness of binding authority on that court. Decisions Per incuriam are not binding

104
(1980)8-11 SC 1
105
Shell B.P v. Jammal Engineering Nig Ltd (1974) 1 All NLR542 and Owunmi v.P.Z (Nig) Ltd (1974) 1 All NLR
(Pt.2) 107
106
Ogundele, 20
107
Jones v. Secretary of State for Social Services (1972) AC 944

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 precedent because they are given in ignorance or without due regard to existing
precedents on the matter at hand which would have been relevant or significantly altered
the decision had it been known.

5.5.2 Factors affecting the weight of a precedent.108

a) Age: When a court decision has stayed so long without alteration, it becomes respected
and unlikely to be disregarded even where the reasoning (ratio decidendi) is not really
sound or convincing.
b) Court hierarchy: weight is usually attached to decisions of courts that rank higher and
superior in court hierarchy than those on the lower rung. Decisions of appellate courts
composed of more than a judge and may be weightier than those decided by trial courts
or courts comprising of just one judge.
c) Law Report: Some law reports focus only on decisions from selected courts (Court of
Appeal and Supreme Courts) therefore causing a dearth of reported cases from the
neglected courts. Decisions from Federal High Courts, National Industrial Courts of State
High Courts are hardly reported. This style will invariably lead to more recognition of the
reported cases as greater weight will be attached to them.
d) History of precedents also affects attached weight. Where arguments were canvassed in a
matter and several authorities cited leading to a well researched judgment, more weight
will be attached to it in contrast to judgment devoid of pleading and merely on
technicalities. Secondly, some case laws have become locus classicus in such a way that
they receive continual approval and validation by judges, the weight attached to cases of
such nature will definitely be high.
e) Lastly case law where the court is unanimous in giving judgment may rank higher than
the one where there are pockets of dissenting judgments. Due to the changing nature of
the society, precedents may become obsolete, inappropriate and discarded where
circumstances (political, economic, social) under which such judgment was given
changes.

2.2 Decisions of court may fall under two major categories: ratio decidendi or obiter dictum.

108
Sanni, 187.

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5.5.3 RATIO DECIDENDI

It is not all parts of a judgment of a court that are binding. The reasoning of the judge in
determining the claim before the court is called the ratio decidendi. Ratio Decidendi is the law
which must be applied by a judge in a court lower in hierarchy to the one where the ratio
decidendi was formulated. It is the principle of law on which a decision is based, it is the reason
for the decision. The whole essence of justice administration is encapsulated in the fact that
before arriving at a decision, the judge outlines or analyses facts which had been proved by
evidence, then he applies the law to the available facts which helps him in arriving at a decision;
decision which has to be backed or supported by reason. That reason is the ratio decidendi which
is usually the binding part of a judicial decision.

5.5.4 OBITER DICTUM

An Obiter Dictum is a statement made by the judge in the course of handing down a judgment.
They are words said or made ‘in passing’ or incidental to the judgment. They include
explanations, remarks, suggestions, speculations, observations, illustrations, opinion, analogy.
They are not binding in later cases because the reasoning was not strictly relevant to the issue at
hand in the original case. However they are merely persuasive precedents or authorities in later
cases and are usually respected according to the reputation of the judge or hierarchy of the court
109
who made the statement or the hierarchy of the court where the statement is made. Obiter
dictum are relevant because by it, we are able to know the foundation from which a presiding
judge proceeded from before arriving at his decision

5.5.5 THE COURT HIERARCHY AND DOCTRINE OF PRECEEDENTS.

a) The Supreme Court of Nigeria

The Supreme Court established under Section 230 of the 1999 Constitution is the highest
Court of the land and its decision is final. The Supreme Court is has both original and
appellate jurisdiction. An appeal from the decision of the Supreme Court lies to no other body
or person. This is however, without prejudice to the power of the president or governor of a
State with respect to the grant of Prerogative of Mercy.

109
Malemi, 126

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Decisions of the Supreme Court bind all other courts in Nigeria except itself this is because
the court has the capacity to overrule itself; therefore it is not bound by its previous decision.
The court is not bound by precedent and can overrule or depart from its previous decisions on
grounds of public policy, where there is breach of justice, and where retention of previously
decided case would lead to perpetuation of injustice.110 Decisions of courts lower in the
judicial hierarchy can be cited at the Supreme Court but they are only persuasive. Where there
are conflicting decisions of the Supreme Court, the subordinate court is at liberty to choose
which to adopt which may either be the latest of the decisions or the one that appears more
comprehensive111

b) The Court of Appeal

This is a federal court established by the Constitution.112 It is an intermediary court to the

Supreme Court which hears appeals from all the lower superior courts of records with its
decisions subject to appeal to the Supreme Court.113

The Court of Appeal is bound by its previous decisions and may depart from them when such
decisions are given per incuriam, or inconsistent with the decision of the Supreme Court or
they have to choose between two or more of its previous decisions and overrule the others.114
In criminal matters however, the Court of Appeal does not deem itself bound by its previous
ruling in criminal matters, but feels relevant to depart from such decisions.115
Court of Appeal is bound by decisions of the Supreme Court no matter how unreasonable it is,
they are not at liberty to distinguish such decisions. However, when they are faced with
conflicting decisions of the apex court, they can either follow the most recent decision, choose
which of the conflicting decisions to follow after due evaluation116 or refrain from taking a
stand by merely sending the case to the superior court for opinion of which of the authorities
to follow.
c) Customary Court of Appeal and Sharia Court of Appeal
110
Bronik Motors and Anor v. Wema Bank (1983) NSCC 225
111
Osakwe v. Federal College of Education (Technical) Asaba (2010) 10 NWLR (pt1201) 1
112
Section.237(1) 1999 Constitution (as amended)
113
Ibid. s. 246(3)
114
Young v. Bristol Aeroplane Co. Ltd (1944) 2 All ER 293
115
Sanni A.O, Introduction to Nigerian Legal Method (Obafemi Awolowo University Press Limited, Ile- Ife, 2006)
191
116
UTC v. Pamotei (1989)2 NWLR 60

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Both set of courts have constitutional backing in sections 280 and 275 of the 1999
Constitution as amended. Customary Court of Appeal and Sharia Court of Appeal hear
appeals from the Customary Courts and Sharia Courts respectively with their appeals lying
directly to the Court of Appeal. Precedents from the Supreme Court and Court of Appeal bind
them. They are expected to abide by their past decisions but could depart from them only in
compelling circumstances and in the interest of justice.
d) The Federal High Court, National Industrial Court and State High Courts.

These are courts of coordinate jurisdiction which exhibits and have the same approach to the
doctrine of precedent. They are duty bound to follow decisions of the superior courts above
them i.e the Court of Appeal and the Supreme Court.117 In the spirit of the doctrine of
precedent, they are expected to follow their own decisions except such is given per incuriam
or against known or available authorities. Courts in this category being of coordinate
jurisdiction are not bound by decisions of their learned brothers in the same category,
however such decisions can be of persuasive value.

117
Dalhatu v. Turaki (2003)42 WRN 15

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