Short Notes on POS 407 - Politics and Law in Africa

Meaning and Linkage of Law

Introduction

The first duty of man as ‘a political animal’ was to create an orderly society from the nasty, brutish and short life he found himself. Thus, man needs a political and legal system to create order and this prompted him to enter into a contract with elders or kings or men of valour to make laws. The above scenario marked the beginning of human administration with a view to provide good governance, unity, peace, progress and social justice.

What is Politics?

           The word “politics” is derived from the Greek word ‘Polis’, meaning a city.  In ancient Greece, the basic unit of human organisation, coterminous with the State, was the city. From ‘Polis ‘ came the word ‘Polities’ meaning ‘citizen’, and ‘Politikos’, an adjective meaning ‘appertaining to the city, the citizen, and citizenship’. (Khan, et al, 1987:3).  The truth remains that the entire gamut of human activities falls within the sphere of political control.  The above brings to fore the Aristotlean conception that ‘every man is a political animal’.  Not animal in the lower animal sense but simply because politics dictates man’s basic existence. The American Political Scientist, Robert Dahl (1990:1) puts it more succinctly: Politics is one of the unavoidable facts of human existence and if politics is inescapable, so are the consequences of politics”.

             Harold Lasswell conceives politics as “Who gets What, When and How?” (Lasswell, 1936).   The above definition conceives politics from the sense of people who are in power at a particular moment or those who can influence incumbents to determine how the power and resources of the State are appropriated. Also, George Kousolas (1981) limits the scope of politics to the State and its institutions by explaining it as “those activities that are closely related to the State and its structure of government” (Kousolas 1975:4). On the other hand, David Easton views the issue from the perspective of resource and value allocation by defining politics ‘as the authoritative allocation of values’. (Easton, 1965:50). It may be noted however, that all these divergent definitions and opinions about the concept of politics can be resolved by synthesizing all of them to posit politics as the conscious attempt to control the minds and resources of men and nations.

What is Law?           

Generally, the concept Law means different things to different people. The Physicist for instance speaks of the ‘law of gravity’; economist speaks of ‘demand and supply’. The Lawyer however is more concerned in its narrow meaning as’ a rule of human conduct formally accepted by the people as binding and backed up by some mechanism for the sustenance of its binding nature. A firm understanding of law is best guaranteed by an understanding of the nature of law. This will be addressed by the following exposition.

The Natural law school

           Before the theory of natural law was developed, the ruler wielded absolute powers based on the divine right theory. The prevailing belief at that time was that man was totally subject to the will of God and incapable of making the “right” law to shape his world. God was said to be the only decreeing authority on earth “who could turn mountains into valleys, cause empires to rise and fall, set up rules according to his own volition and destroy them if they do not govern according to his dictates”.  Therefore the main problem which confronted the natural law thinkers was how to check the absolute power and its abuse by “heavy handed monarchs”.   Reduced to its simplest term, natural law means what is” fair” ”just” or “right” .The protagonists of natural law theory posited that there are certain objective principles in every man, no matter his race or colour telling him what is “fair” “just” or “right” and motivating him to do what is good and abhor what is evil.

        The central thesis is that law has a divine or supernatural origin and that for human laws to be legally valid, they must conform to certain objective moral principles based on the nature of man and the dictates of reason. This reasoning tallies with the role of spiritism as evinced in Africa where they believe that community leaders are the mouth piece of the Gods. This school was boosted by the classical works of Plato and Aristotle. Man is seen to behave in some definite manner which could be ascertained by reason and common sense, just as the sun is ordained to rise from the East. Although it is difficult to speak of a universal moral truth, this school feels that man is a subject of nature and therefore, nature must dictate his laws accordingly.

The Historical School

          This theory was developed to counter the widespread influence of the natural law school in the seventeenth and eighteenth century Europe in overthrowing the monarchs and creating egalitarian societies. Friedrich Carl Von Savigny, a German aristocrat played a prominent role in developing the historical school. Since he was an aristocrat, he had an obvious interest in seeing the legal status quo maintained.

           According to the historical school, there is what is called ‘a spirit of the people’ (Volkgeist) which binds the people of a particular society together and distinguished them from any other people, for instance, a German has a ‘National Spirit’ which makes him think that he is a German and not a French and vice visa. Accordingly, before a law is made for a society, there must be a good understanding of the history of the people. In essence, for the law to be valid, it must accord with the history and the way of life of the people, that is , their custom. The historical school favoured the evolution of law over a period of time as opposed to the concept of fairness goodness and justice etc. as espoused by the natural law school which can lead revolution.

         The historical school seeks to achieve stability and evolution as opposed to revolution which may bring dramatic and unpredictable changes. Drawing heavily from the Hegelian worldview on the organic growth of the State, nurtured by historical forces; the historical school viewed law as an outgrowth from the history of the society rather than an artificial contrivance. The denial of artificiality is an aspect it shares with the natural law school. Law must develop organically from the spirit of the people, just like language and culture. This theory supports the customary laws that developed from the instinctive sense of rightness of the native communities.

         The historical school seeks to achieve stability and evolution as opposed to revolution which may bring dramatic and unpredictable changes. The school places emphasis on the way people actually behave and act as opposed to the formal rules and conduct prescribed by the legislature which often times may be poles apart. There is however the problem of deciding what the customs of the community is. How long

must the practice have been existence and how pervasive must it be among the people? Lloyd (1979) provided no answer to these questions. Hence people have used the theory to either justify or oppose certain practices based on their convenience.

   The historical school tended to give the impression that it is the past and not the will and objectives of a society that determined its law

and future. According to the historical school ‘the future is inexorably linked to the past’.

The Analytical positivist School

         Diametrically opposed to the Natural and Historical school, this school denies the upward growth of law from the society. It developed when philosophers began to realise the need for empiricism in the study of philosophy. The positivists preferred scientific observations to metaphysical myths and drew a clear distinction between law as it is and law as it ought to be. The former embodies the formal characteristics of law while the latter, concerns the content of law is reserved for the moralists.

           They identified three characteristics which must feature in every law so properly called viz

Command (different from instruction or request; it is an order emanating from a political or determinate superior who has effective capacity to punish)

Sovereignty (the sovereign commands habitual obedience from the community)

Sanction (punishments prescribed for prohibited acts)

            The positivists posited that nothing is law except the one laid by the sovereign or his agents. Permitted to make law according to this school are the legislator and Judges. Laws are therefore those   made by the sovereign or through his agents by statutes or case laws. They do not believe that ethnic, religious or moral rules are law unless they are enacted into law.   A major criticism of this school is that it failed to solve the problem of how the balancing of both individuals and communal interests can be done.

The Sociological school

             Sociology was employed to further understand Law based on the realisation of the possibility to study man and his society. Accordingly, lawyers should not be contended with law as a set of abstract norms but should endeavour to study the sociological basis and implications of law.  One of the prominent proponents of this school is Eugene Ehrlich. His view of law was that the real law of the society was not what is contained in the formal legal sources such as statutes and decided cases but the prevalent norms and values in the society. He went further to say that it is such societal values and conducts which determined what the law and not the rules laid down by the sovereign. Then, if law is widely or significantly at variance with popular conduct, such law cannot achieve its objective as an instrument of social control. The analysis of this school is that one cannot know the law of the society by merely reading through the formal legal source. One will have to go to the society to appraise how that law is being obeyed, ignored, executed, modified or supplemented by the society.    

         The school further argued that the centre of gravity of legal development is not in legislation nor in juristic science nor in judicial decisions but in the society itself. The import of the above statement is that it is the living law that reflects the real values and dominates the society’s life. For instance, where commercial practice has developed, it is only after sometimes that courts will acknowledge it and import contracts. It may eventually be embodied in a statute.

      The obvious shortcomings of the sociological school is that it is difficult to determine the extent to which law influences conduct because one would have to observe  what would have happened had the law not been made which is an obvious impossibility.

The Realist School

            This school has an American ancestry. The Realist scholars saw law as the expression of the state through the law courts. They observed that there were certain extra-legal factors influencing the judge and jury more than the evidence adduced at the trial and the legal arguments of the parties. In deciding cases, it was perceived that judges are unconsciously prejudiced in their decision by extra-legal factors such as their way of life, social and educational background, basic likes and dislikes, dress skin, colour, age, occupation and the vocabulary of the litigants and their witness.

Which of the Theories is better?

      The various jurists who propounded the above theories came from significantly diverse backgrounds and orientation. Some of them were academicians of various disciplines such as law, history, philosophy, while others were clergyman, judges etc. the difference of their backgrounds and experiences undoubtedly informed their cardinal conception of law from different angles.  A good summary of this aspect of our study can be found in the comical story of five blind men who attempted to describe an elephant. Since they could not see, it then followed that they had to feel it only by touching the animal. One touched the body, the second the tusk, the third the tail, the fourth the leg and the fifth the trunk. When asked differently how the elephant looked like, one replied that it looked like python, another replied confidently that it looked like pillars, another said that it looked like a strong rope and yet another said that it looked like a mountain. They were all correct, yet wrong. Their error was that each definition was dictated by the part of the elephant which each was able to touch and feel. This same mistake is often made by authors and jurist when attempting a definition of law. Nevertheless, Law can be defined as a body of rules designed or formulated to guide human conduct or action which are enforced among the members of a given state or society. Specifically, we shall adopt John Austin’s positivist definition as stated in Obilade (1990) viz: “Law is the command of a sovereign to those under his jurisdiction with a sanction or penalty available for non-compliance”.

            The following features can be deduced from the above definition:

i.          Law is a body of rules

When a layman thinks of the law, he is probably of the opinion that all the laws of a state are contained in one single document, perhaps “the constitution”. This is incorrect. For instance, the offence of murder and the penalty is not expressly written in the constitution. Rather, this is enacted in section 316 of Criminal Code. As a matter of fact, law consists of multifarious rules some of which are written in the constitution and several other statutes,

prior decided cases and other sources of law including customs which are unwritten in nature.

ii.         It is Man - made

Law are rules society adopts to govern itself. Hence, law within the context of our definition cannot be regarded as God-given in the sense of the Ten Commandments contained in the Holy Bible or Koranic rules and injunctions. This statement however does not deny or minimize the importance of religious beliefs and values in motivating societies to adopt particular rules of law. While many factors including religion, ethics, customs etc usually have some bearing on the selection of the laws by which a society is governed, it must be realized that such values are not laws unless they have been enacted into a statute or selected for enforcement. Since law is man-made, man has the responsibility to determine to a large extent the content of the law of his society. If the law is bad or ineffective, man must take responsibility for it and cannot blame God or nature.

iii.        It is normative in character

Law is a norm which tells us what to do and what to refrain from doing in order to achieve a particular objective. For instance, the rules of criminal law which forbids stealing and the killing of another under certain circumstances are to guarantee security of lives and properties. People who behave contrary to the norms of the society sometimes pay dearly for it either by compensating the injured party or incurring criminal sanction.

iv.        It has an Element of Coercion

Breach of law is usually enforced by means of sanction or coercion through organized institutions such as the Police Force, Law, Courts, Tribunals, Prisons etc. This is the main distinguishing factor between law and moral or ethical rules which are ‘enforced’ (if enforced at all) through social opprobrium or less of integrity in the eye of the members of the public or through informal or unorganized institutions.

v.         Territorial Limitation

Law is usually made to guide the conduct of the people of a particular society or country and are binding on the people and properties within that territory. While the law of two or more communities may be similar there are usually some marked differences depending on their respective needs, objectives, cultural, religious and other values. This is so even between different communities in the same country. For instance, until the enactment of the Land Use Decree (1978 as amended), in

Nigeria, the land tenure systems in the Northern and Southern parts of the country were remarkably different. This is also true of the criminal law and criminal procedure in the country. For instance the Criminal Code and the Criminal procedure act apply in the south while the penal code and criminal procedure code apply in the north.

vi.        Law is not static but dynamic. Since law is meant to regulate the behaviour of man in the society, the content of the law of each society usually changes as the social, political and economic world in which he lives changes. For instance, the invention of motor vehicles, aeroplanes, computers, hi-tech electronics etc, created developments, relationships, demands and conflicts which necessitated the making of new laws and drastic alteration of old ones.   

            

THE NATURE OF LAW IN PRE-COLONIAL AFRICA

Introduction

           It has been argued that African indigenous system of social control lacked a system of law before the arrival of the Europeans. Early European writers argued that Africans were essentially savages, without civilized codes of conduct. They were guided largely by instinct; primitive Africans did what pleased them and not bound by social convention; that their actions were dictated not by human laws, rather by the forces of nature. They argued that Africa had no formal court and specialized legal officials, and efficient enforcement of sanctions, though there was conciliatory procedure. That what existed was an unconstrained exercise of power by single Chiefs councils or by popular assemblies, rather than the regular application of rules, which is characteristic of law. These are great distortions, for Africa had a strong sense of justice and deep respect for law and maintenance of social order as shown in the following discourse.

            There is no universal definition of customary law. In fact, different terms such as “native law and custom”, “native customary law” and “local Law” have been used interchangeably to refer to this class of laws. Customary law has been described as “a body of customs and traditions, which regulates the various kinds of relationship between members of the community in their traditional setting.” The Customary Courts Law of Anambra state defined it as: a rule or body of rules regulating rights and imposing correlative duties, being a rule or body of rules which obtains and is fortified by established usage and which is appropriate and applicable to any particular cause, matter, dispute, issue or question. As noted by the Supreme Court in Zaidan v.Mohosen, it is not a law enacted by any competent legislature in Nigeria yet it is enforceable and binding within Nigeria between the parties subject to its sway.

             For centuries, it has regulated virtually all kinds of relationships and, notwithstanding the abrasive influence of the received law and local legislation; it still serves the needs of the ordinary citizens especially in the area of personal law including marriage, succession and property rights.  While it is convenient to speak of “customary law”, this usage should not mislead us to think that there is a uniform customary law applying in the whole of Africa.

Features of Law in Pre-Colonial Africa

1.         Emphasis on Conciliation and Compromise: While modern judicial process is adversary and punitive such as “winner takes all” which generate enmity, the traditional African system espouses reconciliation through compensation and continued fraternity between the parties. Witness must therefore exercise considerable

discretion and tact so as not to exacerbate disturbed relations between the parties. Reconciliation between disputants was considered more important than strict adherence to rigid legal precedents.

2.         Emphasis on General Principles: Rather than stick to a code of Law, Africans applied its code of general principles, which were not in detail. Her law referred to rules of conduct, the right and obligation of its members as well as taboos. They were an integral part of the religious custom or political structure. Law were not written or codified but passed down through generation in the form of proverbs, adages, or maxims. They possessed a spiritual logic rooted in a social milieu undergoing continuous change. In small-scale stateless societies, religious practice often acted as informal legal procedure. Almost universally, religious systems helped to affirm a society’s value and thus discouraged criminality or deviant behaviour.

3. Group Responsibility: Every citizen has a prime responsibility for maintaining the social equilibrium within a community. This is because African societies had a strong sense of collective or shared responsibility, and the individual was perceived as an integral part of a larger whole. This can be expressed in the phrase “I am because we are; and since we are, therefore I am “. This aptly summarise the African conception of man’s responsibility to his fellow man. An offender’s guilt had to be shared by his extended family and kinship groups. Likewise, his offence against another could be seen as an affront against plaintiffs’ household.

4. Infrequent Use of Informal Enforcement Procedures:  Africans often times take laws into their own hands in a bid to seek redress to perceived injustices. Across the continent, there are remarkable incidences of warfare between ethnic groups and within clans because self-help was a primary attribute of their political and legal relations. Also, there were no formal court rooms or judicial procedure in use. Judgements were often made at palace squares and the Chief always served as the Judge unlike the formal pattern of the bar/bench interaction that characterises the English legal system.               

Politics of Received Foreign Laws

Due largely to Africa’s historical link with great Britain, English law has become a major source of its law because of the politics of colonialism. Having imbibed the common law tradition and considering the fact that most of the Jurists, especially in the formative years of the legal system, were trained in Britain, the English law continues to influence the African legal terrain. This umbilical connection has also influenced the value placed in English decisions generally. Thus we may, for the sake of convenience, classify the operative English laws according to their sources of validity into:

(a)    those that apply by their own force or by imperial extension consisting mainly of status and subsidiary legislations and

(b)     those that have been received into Nigeria by local enactment and comprising the common law, the doctrine of equity and statues of general operation.

For instance, the political entity now known as Nigeria only came into existence on January 1, 1914 when the then Colony and protectorate of Southern Nigeria was amalgamated with the protectorate of Northern Nigeria to form the Colony and protectorate of Nigeria. Most legal systems the world over have, in varying degrees, been influenced by others. This only confirms the universality of laws and the extent of human interdependence. Aside the general influence of external values in the formulation of its laws, Nigeria nay Africa, has had a body of English laws imposed on it by its erstwhile colonial master.

This is usually referred to as the Received English law since it is not all English laws that are necessarily applicable to Nigeria. Although the reception is by local legislation, it should not be seen as a voluntary acceptance of the people but rather a state of being that has its roots in the soil of colonialism.

          The reception clause has been justified as inevitable because the existing customary law at the time did not favour the non-natives, mainly English, who were then finding …..___________________________________________________________________________________________________________        7utheir way into Nigeria.   Secondly the growing complexity of business and trade required a more elaborate and better suited legal regime as customary law was considered inadequate in the circumstances. Thirdly, the arrogance inherent in the colonial system viewed English law as the best form of law.

ASCERTAINMENT OF CUSTOMARY LAW

             Section 72 and 73 of the Evidence Act makes provision for the fact which a Court must take judicial notice of, thereby dispensing with the need to prove such facts by evidence. These includes all legal enactments and any subsidiary legislation having the force of law in any part of Nigeria as well as rules and principles which have been held to have the force of law in any superior court in England or Nigeria. However, Section 14 of the same Act denies customary law the same pre-eminent status. An alleged custom is treated as a fact that has to be strictly proved, not only by the evidence of the person alleging it but also corroborative evidence. The only instance when strict proof may be dispensed with is where the particular custom has been judicially noticed.

               The burden of proving a custom lies on the party who asserts and seeks to rely on it. By virtue of Section 14(2) of the Evidence Act, a

custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court to apply it in assuming that the persons or the class of person concerned in that area sees the custom as binding in relation to circumstances similar to those under consideration.

             Every rule of customary law, even after it has been established as accepted in the community concerned, must necessarily meet the statutory requirements laid down for its applicability. Each law providing for the recognition and application of native law and custom contains a further qualification that it shall not be enforced as law if it is “repugnant to natural justice, equity and good conscience or incompatible, either directly or by it implication, with any law for the time being in force. In recasting these qualifications, Section 14(3) of the Evidence Act mentions that the customs must be in accordance with natural justice, equity and good conscience but adds a new requirement that it must not be contrary to public policy. By the combined effects of these provisions the following three criteria must be satisfied by every rule of customary law for it to be valid:

a.        The rule must not be repugnant to natural justice, equity and good conscience.

b.        The rule must not be incompatible either, directly or by implication with any law for the time being in force.

c.        The rule must not be contrary to public policy.

Repugnancy

              The expression “repugnant to natural justice equity and good conscience” when considered together seems imprecise in meaning. Each of the concepts “natural justice and “equity” has its fairly well understood technical meaning while “good conscience” standing alone is a universal ideal that is easier sought than realized. Even at that the courts have insisted that the lawmakers could not have intended this disjunctive approach to the meaning.

             The burning question, however, has always remained: by whose standards is a rule of customary law to be adjudged repugnant? The courts have theoretically conceded that a custom is not necessarily void because it is inconsistent with English principles neither need it be weighted against the standard of more advanced communities. But this, in practice, has proved difficult for Judges whose background and understanding of the notion of right and wrong are often in conflict with the habits and common conscience of the communities over whom they sit in judgment. Since there is no definite standard for the determination of what laws are repugnant to natural justice, equity and good conscience, an examination of specific cases will show the attitude of the courts

          In Edet v. Essien the court held that a rule of customary law which gives the custody of a child fathered by a husband to another merely because the dowry paid by that other had not been returned was repugnant to natural justice, equity and good conscience. Here the appellant had “married” one Inyang while she was still a child. But the respondent later paid dowry and went through all the ceremonies of a proper marriage when Inyang was matured and subsequently had the two children in dispute. The appellant’s contention was that so long as his dowry had not been repaid, he had a right to any children the woman may bear to whosoever. The court in this case found that the particular rule alleged had not been proved but nevertheless held that even if it had, the custom was repugnant to natural justice, equity and good conscience. This conclusion was probably hinged on the demand of fairness that a natural father should not be deprived of his children in favour of another merely on grounds of a “debt” owed.

            Similarly, in Mariyama v. Sadiku Ejo, the court had to consider a rule of Igbira customary law under which a child born within ten months after divorce belonged to the former husband of its mother. Rejecting this custom in the particular instance, the court was of the view that the child should be given its putative father. Curiously, in this case the court did not go as far as declaring that the rule was repugnant to natural justice, equity and good conscience but merely frowned at its unqualified application, showing it reluctance, the court remarked that it should not be understood to condemn the particular customary law in its general application, nothing that it was basically sound and “would in almost every case be fair and just in its result.         

           In Agidigbi v. Agidigbi the court of Appeal reaffirmed that the Benin custom of inheritance whereby the eldest surviving son of a deceased person inherit the “igi ogbe” is not repugnant to natural justice, equity and good conscience.

           Notwithstanding the general formulation of the test as contained in the statutes, there is no reason to agree that a rule of customary law must always be considered in abstraction. The court in assessing the repugnancy of any rule must necessarily, consider its consequences in particular cases.

Incompatibility

              Another important requirement is that for a rule of customary law to be valid and enforceable, it must not be incompatible, either directly or by implication, with any law for the time being in force. Though this particular criterion is otherwise clear as one intended to subjugate customary law to a higher order of law, problems have arisen from the ambiguity in some of the enactment. For instance, while section 13(1) of the Oyo State High Law uses the phrase ‘any written law for the time being in force.” Some other enactments, like the Cross River State High Court Law, provides for “any law for the time being enacted. In fact, Section 20 of the 1914 Supreme Court Ordinance had used the phrase “any local enactment” until this was substituted with “any law” in Section 17 of the 1943 Supreme Court Ordinance.

             In Re adadevoh, the Court declared obiter that the expression “any law” included the rules of common law pertaining to the enforceability of claims contrary to public policy. A contrary interpretation was however given in Rotibi v. Savage to the effect that the alteration in the 1943 Ordinance was not intended to be a departure from the old law. This view, in spite of its weak support, is to be preferred. Making the rules of customary law subject to English rules of common law, equity and statutes of general application is like emptying the legal system of all its customary law content in the guise of ensuring validity.

           The test of incompatibility again featured in the more recent case of Agbai v.Okogbue. All the parties in that case were from Amankalu Alayi, a village in what is now Abia State, but resided in Aba a few kilometres away; the appellants were members of the Aba branch of the Umankalu age group of Alayi. A levy of N115.00 had been imposed by the group on all its members for the purpose of building a health centre in their village. The respondent, a tailor by profession, declined membership and refused to pay the levy. The appellants argued that the respondents was by their local custom obliged to join an age group and could not opt out of the development levy being demanded. In order to enforce the demand, the appellants broke and entered the respondent’s shop, seized and carried away his sewing machine.

      

          The present action was brought in the Chief Magistrate’s Court for the return of the sewing machine or it value, special damages for the loss of its use during the period of seizure and general damages. In pursuing the case to the Supreme Court, the Court noted that the proper questions are whether a membership of the age group association is compulsory, and if so, whether the respondent, who objected to joining such an association on religious grounds, may be compelled to do so or be deemed to be a member willy-nilly. And if so, was self-help available to the appellants in recovering levies? The Supreme Court took the view that alleged custom compelling the respondent to join the age group association was subject to the provisions of the Constitution relating to freedom of association and of religion. Since the Constitution guarantees all Nigerian citizens freedom of conscience, thought and religion, the respondent is entitled to hold the tenets of his religion, thought and conscience, which prohibit him from joining the age grade, any custom that holds otherwise, it declared, as contrary to the Constitution and therefore will be null and void to that extent.

Public Policy

            The third requirement is compatibility with public policy. This is even more nebulous than the repugnancy test as contained in the Evidence Act. The Act provides that a custom shall not be enforced if it is contrary to public policy. Based on this test, a custom permitting two women to get married to each other was denied enforcement in Meribe v. Egba but the application of this test has not always been without problems coupled with the difficulty in arriving at the parameters to be adopted in gauging the limits of public policy.

         In Amachree v. Kallio, the plaintiff had brought an action for an order restraining the defendant from fishing in the New Calabar River, its creeks and ponds and from erecting structures on the banks of the said river without the plaintiff consent. The defendant, on the other hand, claimed that he had the right to fish therein without hindrance. Based on evidence that the plaintiff had exclusive right to the river, the trial court granted the injunction sought. The decision was reversed on appeal to the full court. While making allusions to the repugnancy of the custom alleged, the court maintained that the principles of common fishery in open navigated and tidal rivers must be maintained on the ground of public policy and public interest. This was before the statutory provision contained in the Evidence Act was enacted.

LEGAL SYSTEMS IN CONTEMPORARY AFRICA

Introduction

            Nigeria, like many other African countries, may be classified under the common law system. It has, however, not lost touch with its indigenous African character as evinced by the strong impact of the rules of customary law. Consequently, the Nigerian legal system emerges as a unique system equipped with all its laws and necessary legal machinery within a sovereign State. A detailed study of the Nigerian legal system reveals factors that are present in almost all other African countries. Thus, emphasis will be on Nigeria.    Although not exhaustive, the following may be identified as the characteristic features of Nigeria legal system.

1. The Influence of Common Law and the doctrines of Equity

               The Principles of Common Law and the doctrines of Equity are main features of the Nigerian nay African Legal System as these two

dynamics of Law jointly governs the administration of justice. The two principles/doctrines will be discussed here for the purposes of clarity.

Common Law

              The English law, originally known as commune ley in French is that part of the law of English law that was formulated, developed and administered by the old common law courts and originally based on the common custom of the realm. England did not have any unified system of law prior to the Norman conquest of 1066 and the subsequent enthronement of King William  I. King William I initiated the idea of harmonizing the legal systems of the entire England. Thus, he initiated Courier Judges that traversed England for this purpose.

                By so doing, there gradually evolved what was to become the common law of England. As time went on, a part of the king’s Court

became more autonomous and became the common law courts, for instance, the court of Exchequer first appeared about 1200 to ideal with revenue matters, followed by the court of common Pleas, responsible for mainly civil matters. It was necessitated by the provisions of the Magna Carta of 1215 requiring that there should be a court in a “fixed place” to perform the functions of the itinerant justices.

             The court of King’s Bench (or Queen’s Bench, depending on the gender of the sovereign) emerged later, originally following the crown on his or her visits round the country. Because of its close connection with the Crown, this court became the most powerful of the three with exclusive criminal jurisdiction.  The common law at this early stage did not always grant automatic access to the courts. This was a privilege granted by royal discretion. The common law at this time was more concerned with form and procedure than the just and equitable determination of individual rights and duties.

          The rigidity of the common law was further compounded by other inherent inadequacies at that stage of its development. For instance, the law had not expanded sufficiently to cover many areas of possible conflict. Things did not appear to have changed much even after the passing of the Statute of Westminster in 1285. It was these developments that directly or indirectly facilitated the development of the doctrines of Equity.

The Doctrine of Equity

            As shown above, the Common law, with its inadequate writ system and technicalities, was anything but satisfactory and most litigants went away disappointed without obtaining redress. While contending with the unavailability of remedies or suitable writs, litigants also had difficulties enforcing judgments obtained against powerful and

influential defendants. Such unsatisfied litigants were compelled to petition the Crown, as the fountain of justice, to exercise his prerogative. These petitions were considered by the King’s council comprising principal officials including the Chancellor who was indeed the King’s Confessor and a key member of the council.

          With time it became customary to channel the petitions through the chancellor to deal with, as he deemed appropriate in the overall interest of justice and fairness. Later, the Chancellor received such petitions directly from complaints and resolved them in his own court-the Court of Chancery. The Chancellor, at that initial stage, had a more flexible approach to the concept of justice than the Common law courts. 

            A clear distinction may be drawn between equity in its general usage as meaning fairness or that which is just, and the technical usage which refers to the body of rules developed in the court of Chancery to mitigate and ease the harshness and technicalities of the common law. The rules of equity were initially very simple, applying differently to similar cases depending on the Chancellor’s view on the justice of a particular case.   

                    Taking advantage of the growing importance of precedents at that time, equity gradually attained some measure of certainty.  The following maxims reflect the general juridical philosophy of the Court of Equity:

I.              Equity acts in personam.

II.            Equity does not suffer a wrong to be without a remedy.

III.           Equity follows the law.

IV.          Equity looks to the intent rather than the form.

V.            Equity looks on that as done which ought to be done.

VI.          Equity imputes intent to fulfill an obligation.

VII.         Equity remedies are discretionary.

VIII.        Delay defeats equity.

IX.           He who comes to equity must come with clean hands.

X.            He who seeks equity must do equity.

XI.           Where there are equal equities, the law will prevail.

XII.         Where there are equal equalities, the first time prevails

XIII.         Equality is equity.

XIV.       Equity will not permit a statute to be cloak for fraud.

             Disagreements often arose between the common law courts and the Court of Chancery with the former querying the jurisdiction of the later to review its decisions or assume its traditional roles and litigants were occasionally caught in these hostilities. Since disobeying defendants at the Court of Chancery were most times punished with imprisonment for contempt, the common law court devised the writ of habeas corpus to obtain their release. The Court of Chancery was finally abolished under the Judicature Act of 1873 and 1875 and both common law and equity have since been administered concurrently in the same courts subject, however, to the superiority of equity in the event of a conflict.

2. Duality

            Due largely to the colonial influence during its formative and the subsequent imposition of English law, Nigeria legal system has acquired a dual structure comprising customary and English laws. Aside from the substantive difference in the rules of customary and English laws, especially in the areas of personal law, the former is subject to the provisions of the latter. However, rules of customary law are treated with less dignity and have to be proved as fact, until they become sufficiently notorious to be judicially noticed.

3. Volume of external influence

            Nigerian law has borrowed heavily from diverse external sources beginning with the influence of Islamic law in Northern Nigeria as a bye-product of the nineteenth century Fulani Jihad, Islamic law has today supplanted the indigenous customary laws of many communities in that part of the country. Even local attempts to reshape and reform the latter, at least until very recently, either ended up following the English pattern or deliberately made room for the importation of English rules of practice and procedure where adequate provision did not exist in local statutes. The criminal code and the Matrimonial Causes Act are modelled after those of Queensland in Australia while the Penal Code, applicable in the North, is fashioned after the Sudanese penal Code.

4. Diversity

           Closely linked with the above two characteristics is the geo-cultural diversity that is so much a part of the Nigerian legal system. This diversity can easily be traced to the heterogeneity of the country’s ethnic grouping. This situation has further compounded the task of proving customary laws and the attainment of a harmonized Nigerian common law. The difference in the major ethnic rules is particularly evident in the areas of marriage, inheritance and property ownership.

5. The system of precedents

            Nigeria has imbibed the tradition of stare decisis which enjoins that earlier decisions should be binding authorities for subsequent cases. The court in which the decision is given may depart from it only in special case while the courts below it are strictly bound by that decision. Such lower courts may not veer from the path of that precedent even where they are inclined by good reason to do so. That practice of obeying precedents has been justified on the grounds that it enhances certainty and predictability in the law and minimizes the influence of personal bias against settled principles of law.  Rigid application of the doctrine is, however, inimical to the advancement of justice and the speedy reform of obnoxious rules.

6. Order of Judicial Hierarchy

            As a prerequisite for the smooth operation of the doctrine of precedents, Nigeria has a well-structured hierarchy in its judicial set-up. Though the State and Federal courts co-exist with their respective jurisdictions there is only one pyramidal line of judicial authority. The Supreme Court, as the highest court in the land, occupies the apex, hearing appeals from the Court of Appeal and retaining some measures of original jurisdiction in selected

matters. There are other superior courts of record below it comprising the Federal and State High Courts, Customary Courts of Appeal and Sharia Court of Appeal. Below these are the inferior courts such as Magistrate Courts, Area Courts and Customary Courts.

               The following courts are the only ones expressly prescribed in Section 6 (5) of the 1999 Constitution as superior courts of record in Nigeria:

(a)        The Supreme Court of Nigeria

(b)       The Court of Appeal

(c)        The Federal High Court

(d)       The High Court of the Federal Capital Territory

(e)        The Customary court of Appeal of the Federal Capital Territory

(f)        The Sharia Court of Appeal of the Federal Capital Territory

(g)       A High Court of State

(h)       A Sharia Court of Appeal of a State

(i)         A Customary Court of Appeal of a State

(j)         Such other courts as may be authorized by law to exercise jurisdiction on matters within the legislative competence of the Federal Executive Council.

(k)        Such other courts as may be authorized by law to exercise jurisdiction on matters within the legislative competence of an Administrator.

            The first six classes of court are federal courts while the rest are State Courts. Federal courts are normally financed by and subject to the control of federal organs including the Federal Judicial Service Committee. The Federal and State legislature may expand the jurisdiction of the courts under their immediate legislative control.

7. Fusion of the Legal Profession

             Legal practitioners in Nigeria are trained as barristers and solicitors within a unified training scheme at the university level and, thereafter, at the Nigerian Law School. They are then admitted to the bar as Solicitors and Advocates of the Supreme Court of Nigeria, combining the duties of both callings.

8. Accusatorial or Adversary System.

           Unlike some foreign jurisdictions that operates the inquisitorial system, the Nigeria legal process is accusatorial or adversary in nature. In the inquisitorial system, the Court is expected to partake directly in the resolution of disputes and prosecution of offenders. However, under the accusatorial system, courts are advised to be detached from the disputants and to maintain a neutral stands as uninterested umpires relying on the arguments from both sides for their final decision.

9. Military Influence

           The impact of the incessant intervention of the military in Nigeria’s political development has left an indelible mark on its legal system. Despite the repeated dismantling of governmental structures, it is commendable though that the Judiciary has always survived those moments with the least interference. Successive military regimes assume executive, legislative and to some extent, Judicial, functions.

POLITICS AND THE INDEPENDENCE OF THE JUDICIARY

Introduction

            The most visible area where the interplay of politics and law is noticed is in the annals of independent judiciary. An independent judiciary connotes the existence of easily accessible courts, uprights and knowledgeable judges and government, which is disposed to consider itself, bound by judiciary decisions. Judicial review is the power of courts to hear and decide properly framed suits questioning and constitutionality of laws and actions of legislative and executive branches of government. Akpotor (2001) further contend that such reviews includes unreasonable measures even though they do not violate a specific constitutional right but which however runs counter to the directive principle of State Policy as stated in the Nigerian 1999 constitution.

     As popularly espoused in modern governmental arrangements, the principle of separation of powers states that not only should the three arms of government (namely executive, legislature and judiciary) be separated but also their functions should be performed by the different persons or a body of persons. For example a member of the Legislature should not simultaneously be a Minister nor should a Judge hold a cabinet post.

            The doctrine of Separation of Powers was popularised by Montesquieu in his book Espirit de Lois in 1748. This doctrine is among other things designed to check abuse of power by government operators and guarantee judicial independence. Similarly, Constitutionalism which means the adherence to the constitution is another strategy for the enhancement of Independent Judiciary. In other words, it is expected that those who govern must do so in accordance with the principle of the constitution.

However, the independence of judiciary is being eroded in Africa and other third world states through the following:

a.            The Politics of Tenure;

b.            Ouster Clauses;

c.             Frequent Disobedience of Courts’ order;

d.            Arbitrary Use of Nolle prosequi;

e.            Use of Tribunals;

f.             Corruption

g.            The amendment of legislation leading to legislative reversal of specific decision and even abolishment of Court.

Some of the above listed points will be discussed below.

a.            The Politics of Tenure:

           All Constitutions are clear on the issue of appointment of judicial officers either at the level of Chief Justices of the Federation or the President of a Customary Court of Appeal. They are to be appointed by the President and Governor respectively on the recommendation of the National Judicial Council, (1999 constitution) (from the recommendation of the Federal and State Judicial Service Commission) subject to confirmation of such appointments by the Senate and House of Assembly respectively. The Judicial Council itself is to be earlier appointed by the President.

            It should be stated that since the President contests election on the ticket of a political party, it would be difficult to see how he could afford to appoint an independent minded-person to the Judiciary. Bearing in mind the possibilities of a crisis, he therefore needs a dependable Judiciary.

            The tenure of the office of the judge is guaranteed and secured against any fear of removal and that remuneration be charged on the consolidated Revenue fund. The Judges can then do their duty fearlessly while. In Nigeria, recruitment of the Judiciary is based on the manipulation of the policies of Federal character of both the Federal and State levels where merit is disregarded and the overriding factor is the candidate’s place of origin.

        What constitute merits includes impressive academic qualifications, experience and intensive legal practice, capability, competence, temperament, character and diligence. Issues such as tribalism, ethnicity, political consideration should never have a place in the appointment and promotion of Judges because of their crucial position in society and magnitude of their responsibility. The hood, it is said, does not make the monk, but to wear the hood without being a monk amounts to impersonation. To make an incompetent person a judge is an analogous to giving a two edged sword to an insane man in a crowded market.

            On the principles of appointment, promotion and removal, African leaders have gone bizarre. Although this phenomenon is not limited to Africa, evidence abound that Judges were also dismissed in England in 1616 under the reign of King James. However such tendencies have since seized.

b.            EXECUTIVE AND LEGISLATIVE LAWLESSNESS:

            From old Zaire (now Congo Democratic Republic) through Uganda to Liberia etc, State agencies often display contempt of Court. The most bizarre has been the Ugandan case where such Judges have been detained, tortured and killed. The Abacha and Obasanjo led governments in Nigeria qualifies to be in the Guinness Book of Records as the regimes that had the least regard for the rule of law.

          In interfering in the affairs of the Judiciary it is often forgotten that the only subordination which a Judge should experience is that which he owes to the existing body of legal doctrine enunciated in years past by his brethren on the bench and upon laws passed by the parliament which have received the President’s assent. In stressing the need for the independence of the judiciary, it might be necessary to call to mind this popular quotation from Winston Churchill; “The principle of the complete independence of the judiciary from the executive is the deepest gulfs between us and all forms of totalitarian rules…”

c. The Nolle Prosequi

          Nolle Prosequi is a Latin word meaning ‘I am unwilling to prosecute’. It refers to the power granted the Attorney-General and Chief law officers of the state and federation by the Nigeria constitution to institute or discontinues criminal proceedings against any person before any court of law in Nigeria, other than a court martial, in respect of any offence created or under any act of national Assembly.  Nolle Prosequi is of common law. It follows naturally therefore, that the Attorney-general who is the chief law officer and his representative in

criminal proceedings, reserves the prerogative to bring a stay on proceedings if he is satisfied of the need to do so.

           This has often been abused as Politics often determines what is to be prosecuted or not as evinced by the invocation of this principle by the Attorney General of Oyo State in the late Bola Ige’s murder case.

d. Corruption

   Like other sectors of the society, corruption affects the administration of justice as well as the independence of law officers. They are highly influenced by Government and the powerful in the society. The scourge has grown to become a way of life of both the governor and the governed as it pervades all sectors of the Nigerian State.  In Nigeria, corruption transcends mere pecuniary exchange(s) as evidences abound on several private and official conducts that depicts glaring departure from honesty.

e. Ouster Clauses

          During the era of military regimes in Africa, especially the Babangida and Abacha regimes in Nigeria, the decrees were often accompanied by ‘ouster clauses’. These clauses forbids the capacities of the regular courts of the land to intervene matters arising from such decrees, thus, weakening the role of the Judiciary as the last hope of the common law as well as Judicial independence.

f. Tribunals

            Tribunals are an integral part of the entire adjudicatory system. They are created by statutes and are expected to complement the traditional court system by exercising judicial or quasi – judicial functions. They are often referred to as administrative tribunals although in truth, many of them are better described as judicial since they handle more than mere administrative matters. Both the military and civilian leaders often times establish tribunals and appoint people other than regular Judges as Chairmen. Under such guise, most of the tribunals turn out to be cosmetic structures that are established to carry out the wishes and aspirations of the authorities.