History of Nigeria Legal system

THE HISTORY OF NIGERIA LEGAL SYSTEM

The history of Nigeria Legal System spanned through 1862 to date although, prior to these eras there were pre-existed legal systems in Northern and Southern Nigeria the former was administered by Maliki school ordained in Muslim law and the later were principal law of the people based in various indigenous customs. However, the settlement of British merchants in nineteenth century introduced consular courts that handled trade dispute between indigenous and British traders. The establishment of Consular Court was geared towards obtaining justice which they(British traders) seldom do in courts established with customary principles. The first Consul was appointed in 1849 with jurisdiction in the entire coastal areas. Apart from Consular courts there was Equity court that would be recognised in 1872 with Consular courts in 1872 by British government.

In 1862 things changed, the British government established a Colony in Lagos state with ordinance No. 3. in 1863 the British government introduced their law and by 1863 the first supreme Court was established by supreme Court ordinance1863 and all colonies under its jurisdiction were placed under the government of the west African settlements. Court of Civil and criminal justice were established in Lagos during this period that replaced supreme court and the west Africa Court of appeal.

In 1874, Supreme Court for the colony of Lagos was established under the 1976 Court ordinance and the common law of England, the doctrine of equity and statutes of general application in force in England on July 24,1874 were applied by the court. The supreme Court was further divided into three arms, the full court, divisional Courts and the district commission. Customary law was also incorporated into the legal system of the colony although it must be justciable to have legal backing. However, the British admistrators influenced all the legislations at the time and and by the virtue of this influence marked the conflict between English law and customary law which were relegated under the test of justiciability.

In 1886, a new ordinance was passed that established a legislature of colony of Lagos under an order in council of 1886 constituted to make laws for the neighbourhood. Followed by this were courts established by Royal Niger Company that were charged to administer justice with carful regards to people's customs and laws. However, the company was approved by charter which was later revoked in 1899.

Before the establishment of oil Rivers protectorate in 1885 British government had established Consuls under order in council of 1872, appointed and empowered to administer treaties made by local Chiefs and British government for good governance of British subjects. Consequently, in 1899 Consul General was appointed to oversea all the British subject who were those who have agreed to be under jurisdiction of British Courts.

By January 1 1990 there was protectorate of southern Nigeria as a result of the amalgamation of Niger Coast protectorate and the territory of Royal Niger Company by oder in council 1899. Following this amalgamation High commissioner was established to oversee and administer the protectorate by proclamation. He therefore, established supreme Court and other courts that constituted arm of the supreme Court by 1900 proclamation also 1900 proclamation established "native courts" that was later replaced by 1901 proclamation provided that the civil and criminal jurisdiction of statutory native court in a district should be exclusively the right of the traditional authority to oversee. Consequently, this proclamation has its effect being that it undermined customs and law of the people. However, two courts were established by the Native courts, minor courts and Native councils. The minor court received all complaints from the people and Native councils that was headed by white men were to hear appeal from the minor courts. In 1906 when Lagos was amalgamated there was a reform of old native courts under the new Court which was made for the new territory although with minor modification of functions.

However, there are big differences between northern legal systems and southern legal systems in respect to native courts and other aspect of their legal system. Unlike southern courts those that made up of native courts in Northern protectorate were all indigenous people appointed by chiefs with the approval of the residents. The Northern protectorate of Nigeria was established in January 1,1900 by order in council 1899 made up of Niger Company North of Ida with high commissioner charing the law making for the protectorate. The commissioner later made a proclamation in 1900 that established a supreme Court, provisional courts and cantonment courts. Supreme Court had jurisdiction to hear civil and criminal cases through the cantonment area and other areas specified by the High commissioner however, it is pertinent to note that just like the supreme Court in southern Nigeria Hitherto, the court administered the common law of England, doctrine of equity and statutes of general application, although with different in the year that it were in force, in Northern Nigeria protectorate it was those that were in force in England on January 1, 1990. Provisional court was established in each province and was chaired by an assistant resident or a justice of the peace that had jurisdiction in civil and criminal cases with unlimited power to execute, deport, imprison, and punish offenders. Cantonment Court was presided by cantonment magistrate appointed by the High commissioner. The court could hear civil and criminal cases but all the cases heard and criminal were listed by supreme Court and supervised by same court.

In January 1, 1914, The Northern and Southern protectorate were amalgamated forming Nigeria as a political unit hence, Supreme Court was established by the supreme Court ordinance 1914 having similar provisions and principle of adjudication of the two amalgamated protectorate with original and appellant jurisdiction in civil and criminal cases. The provisional courts was also established with similarity with Northern Nigeria provisional courts, but was criticized for having no provision for criminal cases and legal representation in the court. Disappointedly, had its autistic defect in administering justice, there was the administrators charged with the responsibility of the court had many works at hand. Obviously, charging administrative officers with judicial function cannot be excused on the ground of short of judicial personnel. Because, the administrative officers who were not conversant with English law and only knew little about customary law could not act in the full capacity of competent judicial officer. The 1918 Native courts ordinance provided for the establishment of native courts by warrant. These court were divided into four classes, grade A B C and D. Their powers and jurisdiction depend on their grade while grade B C and D are subordinate to grade A having to administer in criminal cases and civil cases, only Grade A had power to impose death sentence which must be approved by the governor. In the Northern province and Southern province, the head of native court were chiefs or people's representatives or the Alkali in that of Northern province. They functioned not without supervision, the District officer acted as a check to all the native court. He can order retrial of cases or suspend or even modify the decision of a native court. He also act as a link between the native court and commissioners of the supreme Court. However, each native court administered the customary law of its area and other statutory empowered by the governor. They had jurisdiction over all the natives and only the governor could make one immune to the aqjurisdiction of the native court by exempting such a person.

In 1933, the court system in Nigeria was reformed. High Court and magistrate courts were established for the protectorate having a British-type of courts. Consequently, the courts established by protectorate Court ordinance 1933 had no original jurisdiction in any cases concerning land which was exclusively reserved for native courts only the British administrator can affect change in this regard. It was believed that the native courts which were constituted by the people have prior knowledge of the custom and should therefore administer justice in that area. However, appeals from the decision of the magistrate goes to the high Court while appeal from the decision of the supreme courts goes to west Africa Court of Appeal that was established in 1928 by West Africa Court of appeal order in council. Apparently, the court jurisdiction was extended to Nigeria by 1933 West Africa Court of appeal ordinanceand appeal from the decision of the court will go to the privy Council. The Magistrate Court on the other hand, had civil and criminal jurisdiction and can be appealed from the native courts although, it was not allowed to try a civil case that involves more than £100 suits. Legal practitionerswere however, allowed to appear in the High Court and magistrate Courtthis was made possible by court ordinance 1933 that repealed the provincial courts ordinance 1914 and increased the civil jurisdiction of the native courts. Matters such as marriage, family status, guardianship of children, inheritance, testamentary disposition or administration of estate were handled by native court and British-type of courts ceased to have jurisdiction over such matters. The District officer still has upper hands in native courts and must sit as the president of any native court. He had power to review and transfer cases. He can also order retrial of case before the trial native court or before another native court however, his decisions were not absolute being that Resident can annul his decision. It is worth noting that, indigenous Court ceased to prised over civil and criminal cases in 1938 after native court was established by Native courts(colony) Ordinance 1937.

In 1943, there were amendments of some previous ordinances passed in 1933 by Native courts (colony) ordinance 1943,all other ordinance includes, the magistrate Court ordinance 1943, the supreme court ordinance 1943, the west Africa Court of appeal ordinance 1943which amended the previous 1933 ordinance and children and young person’s ordinance 1943. The 1943 magistrate ordinance new magistrate courts were established and it replaced the commissioner of the supreme Court in the colony and the magistrates ‘Courts in the protectorate. This era ordinance provision established a supreme Court of justice for the whole country that replaced the supreme Court of Nigeria and high Court of the protectorate. It also limited the original jurisdiction of the supreme Court in the area that concerns the native court such relating to marriage, family status, guardianship, inheritance or disposition of property on death exception to this rule was whenever the governor says otherwise or when the case was transferred from the native court. Lastly, the children and young person’s ordinance 1943 provided for establishment of juvenile court to adjudicate on children and young persons' matters.

The Nigeria order in council 1954 introduced a federal constitution constituting three regions; the Northern, Western and Eastern regions and a federal territory in Lagos state. Federal Supreme Court, high court, magistrates’ courts were all established by the provision of the 1954 constitution. . It is pertinent to note that, the federal supreme court during this time still remained colonial masters’ creation and subject to privy council and was hitherto saddled with local responsibilities some of them are; settlement of dispute between a region and the federal government and cases arising from treaties involving foreign representatives in Nigeria e.tc.

The establishment of high court cuts across all regions and also magistrate court in each jurisdiction. Customary courts were established in the eastern and western regions while the Northern region had Native courts and by 1956 established Moslem court of appeal subjected to hear appeal from native courts in civil and criminal cases under the provision of Moslem law. However, these courts that were operative in northern Nigeria were replaced by new Sharia court of appeal and customary court in September 30, 1960 also a new court known as court of resolution was established in order to settle dispute between the court of the region and the Sharia court of appeal. On the same day district court of civil jurisdiction, the criminal procedure code law 1960, and penal code law 1959 also came into being. The native courts in the northern Nigeria had five grades; A, A limited, B, C, and D. A is the most powerful among the five having unlimited jurisdiction in all civil and criminal cases except on imposing of death sentence which were to be confirmed by the executive arm of the government. In 1959, there were panel of jurist appointed by northern that recommended that criminal code ordinance and criminal procedure ordinance to be replaced by the enactment of criminal procedure code law and penal code law for the whole region. The panel also recommended for northern court of appeal to be replaced and the new court that will replace it to hear appeal only in Moslem personal law. The principal law under this recommendation is objectively ordained by Moslem law of Maliki school as it was customarily interpreted hitherto, at where the court heard the case at first. Appeal was organized in a way that appeals from Grade B, C and D courts court lay to provincial court, Grade A and A limited courts to the Sharia court of appeal in cases dictated by Moslem personal law and native courts to appellants division. However penal code law 1959 and the criminal procedure code law 1960 came into force on September 30, 1960. On the other hand, the Western region had four grades of customary courts; A B C and D. A board was made up of legal practitioners, established under local government council and had power to appoint and dismiss customary court members that had civil and criminal jurisdiction. However, all appeal from A grade lay to the high courts. In eastern Region there were two division of courts; District courts and county courts. Among the two the hierarchy was ordained in favour of county courts as appeal lies from district court to count court and from county if there was none to magistrates’ court. Although , the native court ordinance was not repealed and under the ordinance there were two channels of appeal. One goes from the native courts to magistrate and magistrate to high court and finally to the federal supreme court. The second starts from native courts to district officer and from district officer to resident who could appeal to the governor. In 1958, there was a revised edition of the laws of the federation of Nigeria which consisted of 12 volumes this was followed up by Laws of western regions which was revised in 1959 and was made up of six volumes.

In 1960, Nigeria has gained her independence with federal government consisting of three regions namely, Northern,Western and easteren regions. Midwestern region was later created in 1962, however, The entire constitutions of the federation were scheduled to th Nigeria order in council 1960. The parliament legislated on the federal level having exclusive list jurisdiction. The regional legislature made law for each to where it practiced. Hence, this brought the identification of law made by the parliament as an act and the law made by regional legislatures as laws. Consequently, by virtue of designation of ordinance act 1961 all ordinance enacted before 0ctober 1, 1960 were called acts. Within this year all court system did not change including in all regions with privy council retaining its primus position and federal supreme court subject to the former was headed by the chief Justice of the federation. It was during this time that Judicial service commission was established as an advisory body to the government for each religion say to say that all judges appointed were by the advice of the commission. The 1960 constitution proscribed punishment of crime without the provision of the constitution. In 1 october 1963, a new constitution came into force and provided a republican form of government. The privy council ceased to exist in the federation, the Judicial service commissions also ceased to exist and the supreme court of the federation was abolished and supreme court of Nigeria was established as the highest court in the land. The chief justice was appointed by the president on the advice of the prime minister. The same to all federation except judges in all regions who were to be appointed by the governor on the advice of the premier. Supreme court was constituted to have jurisdiction in dispute between the federation and a region or between regions. The reformation of the customary court system made it possible for public service commission to appoint public servants who acted as judges in the styled Area courts. The area courts were made up of second class native courts and provincial courts established in 1960. In western Nigeria, grade D customary courts were abolished by Administrator of the region during emergency by the customary court in 1964. In October 1, 1965, laws of northern and eastern Nigeria which were in force on October 1 1963 were published respectively.

In 1966, there was a coup and the military government took over the government and suspended some provisions of the 1963 constitution by suspension and modification decree 1966 inclusively, the regions constitutions. Hence, the federal military government made laws for the country and military governors made laws for the regions. However, the law made by military governor can of its inconsistent to the laws made by the federal military government became void. The military abolished regions and provided for unitary government and with No 5 decree Nigeria became known as the National military Government. But, this later provision was not meant to last because on july 29, 1966 there was another military coup and a new military government emerged that reversed the decree and restore Nigeria to a federation comprising of four regions. With the uproar in the polity caused by the second military coup a meeting was held in Aburi, Ghana to mitigate the dispute and adjustment was made on the decree made by previous military governments. Before Nigeria civil the federal military government made the State creation and transitional provision decree which divided the country into 12 state federating units having full force of law in accordance with laws of the other state. All the court judges were appointed by the suprme military council after consultation with Advisory judicial committee which continued to function after being established by thr constitution and modification decree 1966. However, appointment the chief justice of Nigeria was exclusively reserved to the head of the federal military government. On july 29,1975 a new military government took over and made a successful transition into civilian rule after a rigorous reformation. The new decree by the government established new Supreme military council having different composition from the previous Supreme military council. The furthermore, section 6(6) of the constitution decree 1975 established the federal executive council and also executive council for each state. Federal court of appeal was established by the same military government in 1976.

All the Court judges are to be appointed by the supreme military council on the advice of the advisory judicial committee, but the committee is not expressly entrusted by the 1975 decree with the task of giving advice on the appointment of justices of the supreme court. However, 19 new states a new federal capital territory were created making Nigeria a component of 19 states and a federal capital territory which was carved out of Niger and Plateaus States, many public officials were forcefully retired because of corruption, and new constitution was drafted. In effect, all the laws in force immediately before February 3, 1976 in area of the country continued to apply in that area until they are repealed or modified by the appropriate authority. Thus, decree was the supreme law all the law that exist in the federation exist by the virtue of a decree although in the case Lakanmi v Attorney-General(west) the supreme court held that a decree was void notwisthstanding the provision of 1966 constitution suspension and modification decree that frowned upon a validity of decree being entertained in court. The 1976 military government retained the hierarchy of court with supreme court being at the apex and established othercourts such as: National industrial courts established to settle trade dispute, The federal revenue court, special military tribunal for trial treasonous offenses and other offenses like rebellion against the government, and special tribunal for the purpose of trying robbery related offences. In 1973 customary courts edict repealed the customary court law and established single grade customary law outside lagos and on April 1 1873 Lagos state published all its laws.