Foundations of Nigerian law: indigenous traditions and British colonial rule, independence, the Constitution as supreme law, sources and hierarchy of law, the reception of English law and legal pluralism

Before and under colonial rule. Before colonial rule the territory held many legal orders: the Sokoto Caliphate of the early nineteenth century and the northern emirates applied Islamic law, the Yoruba, Igbo, Benin, Tiv and other communities had their own customary law and institutions of justice. Britain took Lagos as a colony in 1861, and in 1914 united the Northern and Southern Protectorates into one country, Nigeria. English law and courts were introduced, native courts applied customary law under supervision, and in the north the indirect rule left Islamic law and the emirs’ courts largely in place.

Independence and the constitutions. Nigeria became independent on 1 October 1960 and a republic in 1963. A civil war (1967–1970) and long periods of military rule interrupted constitutional government. A 1979 constitution introduced a presidential system, and the Constitution of the Federal Republic of Nigeria 1999, in force from 29 May 1999 and amended several times, governs today. The Land Use Act of 1978 (Module 6) is entrenched in it.

Supremacy and the sources. Section 1 of the Constitution declares it supreme and says that any other law inconsistent with it is void to the extent of the inconsistency. The sources are the Constitution, federal Acts and state Laws (with their subsidiary legislation), the English law received in Nigeria (common law, doctrines of equity and statutes of general application in force in England on 1 January 1900, together with later statutes made applicable), judicial precedent, customary law and, where it applies, Islamic law. If a state law conflicts with a federal law on a matter on which both may legislate, the federal law prevails (section 4(5)).

Precedent and custom. Nigerian courts follow stare decisis: a court is bound by the decisions of higher courts, and the Supreme Court is the highest, which may depart from its own earlier decisions only for good reason. Customary law must be proved by evidence (or judicially noticed once established) and is applied only if it is not repugnant to natural justice, equity and good conscience, not incompatible with any law in force and not contrary to public policy. The courts have used these tests, and the fundamental rights in the Constitution, to strike down customs that discriminate against women, for instance in inheritance (Module 6). Criminal law differs by region: the Criminal Code applies in the southern states and the Penal Code in the northern states, with federal statutes on top (Module 8).

Federal and plural. Nigeria has one Constitution and one national structure of courts at the top, but federal and state governments each make law, and state courts apply customary law and, in the north, Islamic law. The Exclusive Legislative List (defence, foreign affairs, currency, customs, banking, immigration, mines and minerals and others) belongs to the National Assembly, the Concurrent List is shared, and everything else belongs to the states (Module 3). Thus commercial and company law are federal, while land administration and much of the law of the family are in practice state and customary matters.

• What stays common to all. The Constitution, the fundamental rights, federal statutes and the appeal courts apply to everyone in Nigeria, including foreigners.
• What differs. State laws, customary law and Sharia vary by state, community and religion. Do not assume that all Nigerians are subject to the same customary or religious rules.
• For a foreigner. Ask which state’s law applies, whether a federal statute governs the subject and, for land or family matters, which local or customary rules matter.