When she was 15 years old, the clamant, M, flew unaccompanied from Kuala lampur to Amsterdam on an aircraft operated by the defendant airline. She fell asleep,and awoke to discover the man sitting next to her touching her left thigh. Although M sustained no physical injury, she became very depressed. She brought an action for damages against the airline, relying on art 17a of the Warsaw convention 1929(as set out in sch 1 of the carriage by air Act 1961). Under that provision, the carrier was liable for damage sustained in the event of death or wounding of a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of the operations of embarking or disembarking. On application by both parties for summary judgment, the judge found for M on the question of liability. The airline appealed, con tending that the assault on M was not am 'accident' within the meaning of art 17 since it was not related to the operation of the aircraft or characteristics of air travel. Although M did not accept that that was the correct test, she contended that it was satisfied on the facts of the case. She further submitted that 'bodily injury'__' lesion corporelle' in the French text__ included mental injury and accordingly was not confined, as the airline contended, to physical injury.
HELD__(1) There was no doubt that the accident that had befallen M exemplified a special risk inherent in air travel and that, whatever the precise test might be,it constituted an 'accident' within the meaning of art 17. Circumstances were rare that resulted in a 15 years old girl settling down to sleep in close proximity to an unknown man. M could therefore satisfy the requirement, if so it was, of demonstrating that the 'accident' related to,or was characteristics of,carriage by air.
(2) On the true construction of art 17 of the convention, bodily injury' meant physical injury. There was nothing to suggest that in 1929 claims for mental injury or distress__ other than in consequence of the or physical injury of the claimant or someone related to him__were encountered in any of the jurisdictions of the parties to the convention. No mention had been made of liability for mental injury in the course of ththe negotiations that resulted in the convention, and it was a rational deduction that the drafters had not contemplated psychic injury. They were correct, at the time, not to envisaged claims for such injury as an area of liability that required to be addressed in the convention, for decades were to elapse before any such claim was advanced against an air carrier. Those considerationd led to the firm conclusion that when those who had drafted the convention used the phrase 'lésion corporelle'/'bodily injury',and had not intended that it would extend to a different type of harm,namely mental injury. The phrase had for the drafters a uniform meaning, and changes that had since occurred in the attitude of different jurisdictions to liability for causing mental injury could not effect a change in the meaning to be accorded to that phrase to that phrase in the convention, and accordingly the appeal would be allowed.
Friday, 28 April 2017
Monday, 24 April 2017
Have you ever gazed
at the night skies
Only to see your hand
Plucking the stars
And your lip buried
Deep the mouth of the moon bride?
Have you ever walked Into the Temple
With your head bow in low tempo
Only to see your soul lifted,
In the presence of Apollo
Singing with Angels, all whited?
Have you ever delved into the pool
After a nice day at the poolroom
Only to see your flipper flippin'
Along side the great Poseidon '
Deep down Mississippi dam?
Have you ever had a desert throat
After a walk in the desert path
Only to see your body feasting with Ceres
And your Spirit drunk in the vineyard of Bacchus?
Have you ever seated
Round a bump fire
Taling myths and Legend'
Only to see your feet in the midst of the crossfire?
Have you ever needed
Or missed someone
Only to find
You both with Venus and Cupid in paradise?
Have you ever been buried
Deep down your mind
And your body left
Soulless and without Spirit?
Have you ever fared
with fairy bluebird
into your minds world
A world just for our kind
A world that limits limitation
The impalpable world of imagination?
(c) Smart Fyneface 2017
Apollo, god of Music,
Cupid and Venus, god and goddess of love ,
Ceres, god of harvest ,
Bacchus, god of wine ,
Poseidon, god of Sea ,
Saturday, 22 April 2017
The protection of the environment is a necessity for the survival of every being and the importance of legislation on the matter is marched with international concern as international treaties and customs are made as a consequence of international cooperation. However Nigeria has responded positively with policy instruments to curb hazardous activities depleting the natural texture of the environment.
To guide the Ministry in its efforts to address key environmental issues in Nigeria, a number of policy instruments/laws and regulations have been put in place.
1.The National Policy on Environment
The purpose of the National Policy on the Environment is to define a framework for environmental governance in Nigeria.
In addition to the National Policy on Environment, there are other policy documents on some thematic areas of the Ministry’s mandate. These include:
The national forest policy (2006);
The national drought and desertification policy;
Environmental Enforcement Policy;
National Environmental Sanitation Policy,
National Policy Guidelines on Sanitary Inspection of Premises;
National Policy Guidelines on Solid Waste Management;
National Policy Guidelines on School Sanitation;
National Policy Guidelines on Pest and Vector Control;
National Policy Guidelines on Market and Sewage Management;
National Policy Guidelines on Food Sanitation;
2. THE NATIONAL FOREST POLICY
The overall objective of the national forest policy is to achieve sustainable forest management that would ensure sustainable increases in the economic, social and environmental benefits from forests and trees for the present and future generations including the poor and the vulnerable groups.
3.NATIONAL DROUGHT AND DESERTIFICATION POLICY
The main goal of the policy is to reduce (or where possible prevent) the adverse effects of drought and desertification, and halt or even reverse the processes of desertification, to the end that people’s lives are immensely improved and poverty reduced.
Many laws and regulatory measures have been put in place to promote sustainable environmental management in many sectors of the economy. Some of the critical acts include:
5.NATIONAL ENVIRONMENTAL (Wetlands, River Banks and Lake Shores) REGULATIONS, S. I. No. 26 of 2009:
This Regulation provides for the conservation & wise use of wetlands & their resources in Nigeria and ensure sustainable use of wetlands for ecological and tourism purposes and to protect wetland habitats for species of fauna and flora.
6.NATIONAL ENVIRONMENTAL (Watershed, Mountainous, Hilly and Catchments Areas) REGULATIONS, S. I. No. 27 of 2009:
This Regulation seeks to protect water catchment areas and ensure the minimization of significant risks and damage to ecological and landscape aspects.
7.NATIONAL ENVIRONMENTAL (Sanitation and Wastes Control) REGULATIONS, S. I. No. 28 of 2009:
The purpose of this Regulation is to provide the legal framework for the adoption of sustainable and environment friendly practices in environmental sanitation and waste management to minimize pollution.
8.NATIONAL ENVIRONMENTAL (Permitting and Licensing System) REGULATIONS, S. I. No. 29 of 2009:
The provisions of this Regulation enable consistent application of environmental laws, regulations and standards in all sectors of the economy and geographical region.
9.NATIONAL ENVIRONMENTAL(Access to Genetic Resources and Benefit Sharing) REGULATIONS, S. I. No. 30 of 2009:
The overall purpose of this Regulation is to regulate the access to and use of genetic resources and ensure sharing of the benefits from their utilization.
National Environmental (Mining and Processing of Coal, Ores and Industrial Minerals) Regulations, S. I. No. 31 of 2009:
This Regulation seeks to minimize pollution from mining and processing of coal, ores and industrial minerals and encourage the application of up-to-date efficient cleaner production technologies.
10.NATIONAL ENVIRONMENTAL (Ozone Layer Protection) REGULATIONS, S. I. No. 32 of 2009:
The provisions of this Regulation seek to prohibit the importation, manufacture, sale and the use of ozone-depleting substances.
National Environmental (Food, Beverages and Tobacco Sector) Regulations, S. I. No. 33 of 2009:
The purpose of this Regulation is to prevent and curtail pollution from all operations and ancillary activities of food, beverages and tobacco sector to the Nigerian environment.
11.NATIONAL ENVIRONMENTAL(Textile, Wearing Apparel, Leather and Footwear Industry) REGULATIONS, S. I. No. 34 of 2009:
The main thrust of this Regulation is to ensure that all operations and ancillary activities from this sector do not have significant negative impact on the Nigerian environment.
12.NATIONAL ENVIRONMENTAL (Noise Standards and Control)REGULATIONS, S. I. No. 35 of 2009:
The main objective of the provisions of this Regulation is to ensure tranquillity of the human environment or surrounding and their psychological well-being by regulating noise levels.
National Environmental (Chemicals, Pharmaceuticals, Soap and Detergent Manufacturing Industries) Regulations, S. I. No. 36 of 2009:
This Regulation seeks to ensure the safe use of chemicals in line with best practices including the adaptation of the 3R principles namely-reuse, recover and recycle.
13.NATIONAL ENVIRONMENTAL(Standards for Telecommunications/Broadcasting Facilities) REGULATIONS, S. I. No. 11 of 2011:
The main objective of this regulation is to ensure that activities of the telecom industry do not negatively impact on the environment and human health.
National Environmental (Soil Erosion and Flood Control) Regulations, S. I. No. 12 of 2011:
The overall objective of this Regulation is to regulate all earth-disturbing activities, practices or developments for non-agricultural, commercial, industrial and residential purposes.
14.NATIONAL ENVIRONMENTAL(Desertification Control and Drought Mitigation) REGULATIONS, S. I. No. 13 of 2011:
This Regulation seeks to provide an effective and pragmatic regulatory framework for the sustainable use of all areas already affected by desertification and the protection of vulnerable lands.
National Environmental (Base Metals, Iron and Steel Manufacturing/Recycling Industries) Regulations, S. I. No.14 of 2011:
The principal thrust of this Regulation is to control all operations and ancillary activities of this sector in order to safeguard the Nigerian Environment from their negative impact.
National Environmental (Control of Bush/Forest Fire and Open Burning) Regulations, S. I. No. 15 of 2011:
The principal thrust of this Regulation is to prevent and minimize the destruction of ecosystem through fire outbreak and burning of any material that may affect the health of the ecosystem through the emission of hazardous air pollutants.
National Environmental (Protection of Endangered Species in International Trade) Regulations, S. I. No. 16 of 2011:
The major objective of this Regulation is to protect species of endangered wildlife from extinction through the prohibition of trade, importation, etc.
National Environmental (Domestic and Industrial Plastic, Rubber and Foam Sector) Regulations, S. I. No. 17 of 2011:
The principal thrust of this Regulation is to prevent and curtail pollution of the Nigerian environment from all operations and ancillary activities of this sector.
15.NATIONAL ENVIRONMENTAL (Coastal and Marine Area Protection) REGULATIONS, S. I. No. 18 of 2011:
This Regulation provides for the regulatory framework for the application of preventive, precautionary and anticipatory approaches so as to avoid degradation of the coastal and marine environment
National Environmental (Construction Sector) Regulations, S. I. No. 19 of 2011:
The purpose of this Regulation is to prevent and minimize pollution of the Nigerian Environment from the impacting activities of Construction, Decommission and Demolition.
National Environmental (Control of Vehicular Emissions from Petrol and Diesel Engines) Regulations, S. I. No. 20 of 2011:
The purpose of this Regulation is to safeguard the Nigerian environment against pollutants from vehicular emission.
16.NATIONAL ENVIRONMENTAL (Non-Metallic Minerals Manufacturing Industries Sector) REGULATIONS, S. I. No. 21 of 2011:
This Regulation provides the regulatory framework for the control of all activities of this sector in order to protect the Nigerian environment from their negative impact.
National Environmental (Surface and Groundwater Quality Control) Regulations, S. I. No. 22 of 2011:
The purpose of this Regulation is to restore, enhance and preserve the physical, chemical and biological integrity of the nation’s surface waters, and to maintain existing water uses.
17.NATIONAL ENVIRONMENTAL(Electrical/Electronic Sector) REGULATIONS, S. I. No. 23 of 2011:
The main purpose of this Regulation is to ensure that best practices are applied and maintained in the operation of this sector in order to safeguard the Nigerian Environment against pollution hazards.
National regulations and guidelines that have been put in place by Government include the followings:
Harmful Waste Act retained as Cap HILFN2004 (prohibits the carrying, depositing and dumping of harmful waste on the land and territorial waters of Nigeria;
Endangered Species (Control of International Trade and in Endangered Species) Act –retained as Cap E9LFN2004 (Conservation of wildlife and protection of threatened and endangered species);
Environmental Impact Assessment Act retained as Cap EI2LFN2004 (Sets out the general principles, procedures and methods of Environmental Impact Assessment for various sectors;
National Environmental Protection (Effluent Limitations) Regulations S.I.8 of 1991 (to ensure the installation of anti-pollution equipment for the detoxification of industrial effluent chemicals discharge;
Environmental Guidelines and Standards for the Petroleum Industry in Nigeria 2002-seeks control and prevention of pollution from petroleum operation;
Mineral Oil Safety Regulations 1997 to ensure that oil and gas operators provide necessary material to their employees;
Petroleum Drilling and production Regulation 1967- regulates the licensing of oil exploration, prospecting and mining;
National Environmental Protection (pollution abatement in industries and factories generating waste) Regulations S.I.9 of 1991-regulates the release of hazardous substances into the ecosystems; and
National Environmental Health Practice Regulations 2007 regulates environmental health practice.
National Environmental Protection: Management of Hazardous Wastes S. I. 15;
Guidelines on Hazardous Chemicals Management;
Guidelines on Pesticides Management;
National Chemical Management Profile to assess chemicals management infrastructure;
National Implementation Strategy for Chemicals Hazard Communication;
The National Implementation Plan for Persistent Organic Pollutants; and
National Environmental Health Practice Regulations, 2007.
National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007
This Act established NESREA and charged it with the responsibility of protecting and developing the environment in Nigeria, as well as enforcing all environmental laws, regulations, standards, policies, guidelines and conventions on the environment to which Nigeria is a signatory.
Environmental Impact Assessment Act Cap E12 LFN 2004
This Act sets out the general principles, procedures and methods of environmental impact assessment in various sectors.
Harmful Waste (Special Criminal Provisions, etc.) Act Cap H1 LFN 2004
This Act prohibits the carrying, depositing and dumping of harmful waste on any land and territorial waters of Nigeria.
Endangered Species (Control of International Trade and Traffic) Act, Cap E9 LFN 2004.
This Act provides for the conservation and management of Nigeria’s wild life and the protection of some of her endangered species in danger of extinction as a result of over-exploitation, as required under certain international treaties to which Nigeria is a signatory.
NATIONAL POLICIES, GUIDELINES AND STANDARDS
Corporate Strategic Plan:
This plan describes the scale of the environmental and social challenges, and explains how NESREA, with the support of other key stakeholders, will address these issues in year 2009-2012.
Environmental Enforcement Policy:
This policy aims at providing actions to take in enforcing environmental legislation, standards, regulations and guidelines fairly and appropriately in a manner that will protect environmental quality and safeguard public health.
National Environmental Sanitation Policy:
This policy seeks to stimulate, promote and strengthen all government regulations concerned with housing and urban development, food security water supply, sanitation related endemic diseases and illnesses, flood and erosion control, drought control, school health services and environmental education.
National Policy Guidelines on Sanitary Inspection of Premises: This policy seeks to promote clean and healthy environment for the populace.
National Policy Guidelines on Solid Waste Management:
The aim of this policy is to improve and safeguard public health and welfare through efficient sanitary Solid Waste Management methods that will be economical, sustainable and guarantee sound environmental health.
National Policy Guidelines on School Sanitation:
The purpose of this policy is to protect school children from hazards and to encourage the provision of sanitary facilities in schools.
National Policy Guidelines on Pest and Vector Control:
This policy is to establish and strengthen pest and vector control units at the three tiers of government.
Guidelines for Importation of Used Electrical and Electronic Equipment into Nigeria:
These guidelines seek to discourage the unethical practice of importation of sub-standard electrical and electronic equipment (EEE), near-end-of-life EEE which is associated with environmental and health problems when disposed off by burning in the environment. They also provide guidance for importers of used Electrical and Electronic Equipment into Nigeria.
National Policy Guidelines on Market and Sewage Management: These guidelines ensure the provision of adequate and sustainable sanitary facilities in and around markets and abattoirs.
National Policy Guidelines on Food Sanitation:
The main objective of the policy is to enhance food security, public health and quality of life through the promotion of sound food sanitation practices in all food premises in the country.
National Environmental Sanitation Action Plan:
This plan is aimed at increasing National productivity and foster Economic Development through improved Environmental sanitation practices.
National Training Manual on Food Sanitation for Food Handlers:
The aim of this policy is to provide food handlers with the knowledge and skill required to ensure sound food sanitation practices in order to protect public health, promote quality of life and reduce poverty.
National Training Manual and Trainers Guidelines on Food Sanitation for Environmental Health Practitioners:
This training manual is aimed at imparting Environmental Health Practitioners with the knowledge and skills in food sanitation to empower them with the capacity to train food handlers and other stakeholders.
The Ministry has initiated numerous Bills. Some are before the National Assembly. There are those that have been forwarded to the Federal Ministry of Justice for processing while others are at the levels of preparation within the Ministry:
A Bills before the National Assembly
Response, Compensation and Liability for Environmental Damage (RECLED) Bill
Petroleum Products and Other Oil Related Activities Compensatory Relief Bill.
B. Bills at the Federal Ministry of Justice for processing
Climate Change Agency Bill
Domestication of the Kyoto Protocol Bill.
Review of the Ozone Depleting Substances (ODS) Bill
C. Bills Being Prepared at the Ministerial Level
National Biodiversity Conservation Agency Bill;
National Environmental Management Bill;
Chemicals Management Bill.
Draft Policies Being Prepared at the Ministerial Level
The National Globally Harmonized System (GHS) Implementation Strategy (NIS);
Guideline for proper disposal of Impounded/Seized goods;
The National Biosafety Policy;
NESREA Strategic Action Plan;
Review of the National Oil Spill Contingency Plan;
Implementation Plan of the Stockholm Convention on Persistent Organic Pollutants (POPs) for Nigeria;
Classification Of The National Park Service As A Para-Military Organization;
Climate Change Action Plan;
National Policy on Climate Change;
Revised National Policy on Environment
The plethora of legislations enacted by the government of countries and regions underscores the importance of the environment to man and if properly implemented will lead to the betterment of all saving us pecuniary and irrecoverable costs.
Tuesday, 18 April 2017
We are dead but still living
Life cannot hold us down
We are dead but can breathe
Journeys that were not completed
We are dead but can teach
Our aspirations were not thought
We are dead but can redeem
The mist of the morning that becomes hot at noon
We are dead but can win
Battles are fought in full belief
We are dead but can motivate
Lives can change their attitude
We are dead but can talk
We are the hidden voices of a man's life
We are the potentials that were never discovered and utilized
We are the kind of things that were only wished for but not attained
We are dead but cannot rise again even we live
Don't allow your goals and visions lie fallow.
By Elfrida Egbikiowubo
Towels everywhere, Smiles of a mother even in pain
Doctors and Nurses all happy, no loss, all is gain
Friends, loved ones, relatives, all bath with powder, none with shame
A sigh of relief from the husband, "all bills have been paid"
Oh! I'm now in this world finally, the baby burst into tears like a moving train.
Just imagine it !
The journey not so rosy and calm
One can only relax with a psalm
Ambitions, dreams, goals, life has on its palm
To fulfill destiny, one leaves city for town
Corruption, struggles, survival of the fittest, can bring one down
Just imagine it !!
The devil to one may be the god to another
Trust becomes rare for deceit is older
A promising baby becomes a man for others
Life tells on him without preference to his shoulder
Vanity! Tears at the grave yard for a life without Order.
Just imagine it !!!
By Elfrida Igbikiowubo
As a conditional appearance is a challenge to jurisdiction, it must, of necessity, be made before the Court hears any submissions, so even applying to adjourn a summons will affect your ability to challenge jurisdiction.
In summary, conditional appearance is a protest appearance made to challenge the jurisdiction of the court to hear a matter and must be made before the court hears any other submissions.
Saturday, 15 April 2017
GROUNDS FOR JUDICIAL REVIEW UNDER NIGERIA ADMINISTRATIVE LAW
Judicial review, the power of court to review statutes and governmental actions to determine whether they conform to rules and principles laid down in the constitutions. This power that was popularized by the U.S. case of Marbury V. Madison is not a prostitute but subject to some conditions before the court can unleash it. These conditions which could be either procedural or substantive or both are the care essence of the invention of the judicial review.
Judicial review is the doctrine under which legislative and executive actions are subject to review (and possible revalidation) by the judiciary
A courts power to review the actions of the other branches or levels of government, especially, the courts power to invalidate legislative and executive actions as being unconstitutional.
Judicial review is the control by the court of the exercise of power by governments. In judicial review, the court among other, usually examines the decision and the procedure used arriving at the decisions
An appreciation of judicial review would be aided by the knowledge of its basis, nay, and foundation with Nigerians a case study, the foundation of judicial is deeply rooted in the Nigerian constitution 1999, furthermore, every Nigeria constitution since independent, although many are defunct, gives vent for the operation of judicial review. For clarity and simplicity, it is pertinent I adumbrate the provisions of the constitution, thus section 46 of constitution of the Federal Republic of Nigeria 1999 (as amended) hereinafter referred to as C.F.R.N 1999, states;
Any person who alleges that any of the provision of this chapter has been, is being or likely to be contravened in any state in relation to him may apply to attach court in that state for redress.
Subject to the provisions of this constitution, a High Court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such order, issue such writ and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any right to which the person who makes the application may be entitled under this chapter.
The above provision is mutatis mutandis, in par material with section 31 of the 1960 independence constitution.
It needs no emphasis to state that the C.F.R.N 1999 is the ground norm of the land by the provisions of S.1 which is a supremacy clause and by virtue of section 6, vested the judicial tower of the state on the judiciary.
Judicial review, like many legal terminologies, is not devoid diverse definitions. Some has defined it as the weighing of all exercise of governmental power on the scale of the ground norm by the judiciary.
For judicial review to be set in motion, there are grounds upon which it must kick start, this grounds could be either substantive or procedural.
The substantive ground
This section is concerned with grounds of review relating to the substance or content of the official decision or action that is under review. The substantive grounds are, viz:
i. The ultra vires rule (excess of powers)
When a power vested in a public authority is exceeded, acts done in excess of the power are invalid as being ultra vires. The ultra vires rule gains it survive from the constitutional system of government practiced in Nigeria. Ultra vires means “Beyond the power” “outside the power that has been given or “outside the power that one has”.
Where power is conferred, the exercise of it by the donee or authority possessing the power must necessarily be within the powers conferred on him. Otherwise, whatever is done outside, or beyond the owner conferred on the authority exercising the power is ultra vires, that is, beyond its power to do. The simplest instance of the rule is where a local council, whose capacity to act and to regulate private activities is derived from statute, acts outside the scope of that authority.
An act which is not within the power that is conferred is usually treated by court as null and void and of no effect whatsoever, under the doctrine of ultra vires.
In Gankon V. Ugochukwu Chemists Ltd, the two parties were disputing the title to a certain parcel of land. Whilst the plaintiff appellant relied on the local government council for his title, the defendant respondent relied on the State Government. The Supreme Court dismissing the plaintiff appellant’s claim held: that a local government council has no right, authority or jurisdiction to grant or vest any right of occupancy on land in an urban area or land designated by government of the state as constituting an urban area.
It is striking to note that ultra vires could be substantive or procedural. Substantive ultra vires is an exercise of power beyond that conferred by the constitution or statute. If the power exercised or act done is beyond the power or authority conferred by statute, whatever the name of the statute there is ultra views, for the doer has acted outside or beyond the power conferred on him by law.
On the other hand, procedural ultra vires is a failure to follow or observe a stipulated procedure. This is where there is a failure to follow the laid down procedure for doing a thing. Where a statute lays down the procedure to be followed in a doing a thing, a failure by a public authority or court to observe the procedure will result in procedural ultra views and court may set it aside, even though, the act was within one’s power to do .
The doctrine of ultra vires generally applies to every person and authority in a country, which inter alia includes
Abuse of discretionary power
Exercise of discretionary power involves the possibility of choosing between several decisions or course of action each of which may be lawful. However, in exercising discretion, an official or public body may (intentionally or inadvertently) make a decision or embark an action which the court considers.
As a general rule, discretion must be exercises fairly, reasonably and according to law. Therefore, where discretion is exercised improperly, arbitrarily, unreasonably, or based on irrelevant considerations and so forth, an order of court will issue against it. In Iwaji V. Fed commissioner.
Failure to Perform A Statutory Duty
A body may act unlawfully if it fails to perform a duty imposed upon it by statute. In such an instance, an order of man damns will usually he to compel the relevant authority or body to exercise the power or perform the public duty which has been neglected.
Mistake of fact
Where the action, policy or decision of government, public authority or body based on an iron of fact, misdirection on fact, falsehood, malice, oppression, in justice and so forth a court will set aside such action or decision as ultra vires.
In R.V Criminal injuries compensation board, four numbers of the House of Lords accepted that a decision could be quashed for a material enron of fact subsequently it has been held that a mistake of fact giving rise to unfairness is a separate head of challenge where there is an appeal on a point of law.
B. Review an procedural grounds
Even if the substance of an official decision is within the powers of the body taking it, a question that may arise is whether it has been made by a proper procedure, and it will be invalid if essential procedural requirements have not been observed.
B Procedural Grounds for Judicial Review
The following are ground procedural grounds for judicial review.
Natural justice: the origin of natural justice is to be found in the rules of fair procedure observed by the civil and luminal courts, Many aspects of natural justice at common law are now reinforced by the C.F.R.N. 1999 (as amended) which gives effect to the right to fair hearing under section 36.
As an unwritten principle, natural justice evolved largely through the control exercised by the central courts over bodies of inferior jurisdiction.
The natural justice rule connotes an inherent right in man to have a fair and just treatment at the hands of the rulers or their agents.
The court in Deduwa V. Okorodudu pointed that the principles of natural justice are easy to proclaim, but their precise extent is far less easy to define. However, the two essential of natural justice with which we are concerned in this appeal are that:
No man shall be judge in his own cause (Nemo judex in causa sua)
Both sides shall be heard (audi alterem parten)
The rule against bias: The essence of a fair judicial decision is that it has been made by an impartial judge. The latin phrase, nemo judex in causa sua, or nemo debetese judex in propria cause means that, no one should be a judge in own cause. No one should be both a prosecutor and a judge, in a matter in which he is a party or has an interest, or stalk.
Malemi in his book expounded the word “bias” as an opinion or feeling in favour of one side in a dispute or argument.
On the other hand, hearing in Akoh V. Abuh has been seen as a cause or matter, means to hear and determine the cause or matter, means to hear and determine the cause or matter, means to hear and determine the cause an matter. Delivery of the judgement in a matter is part of hearing of the cause or matter.
Fair hearing: this purports the each party should have the opportunity of knowing the case against him or her and of stating his or her case. Both parties must have the chance to present their version of facts and to make submissions on the relevant rules of law. The court in Mohammed V. Isanob stated that “fair hearing involves a fair trial.
It is worthy of note to point out that a fair hearing and fair trail are one and same. The court in Ariori V. Elemo, adopting Ademola C.J.N in Mohammed V. Kano posited “it has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consist of the whole hearing. We therefore see no difference between the two. The true test of impression of a reasonable person at the trial, whether from his observation, justice has been done in the case”.
Fair hearing admits extensive sacrosanctity as it predates the constitution. The enshrinement in the constitution is but reinforcement. Even when the constitution is overwhelmed by circumstance like military coup or revolution, the firmness of fearing hearing remains invariably constant. The rule of fair hearing is of great antiquity, as biblical Cain is the first recorded beneficiary of the rule.
Where a tribunal or adjudicatory body is in breach of this fundamental principle, at the instance of the affected party, the court can delve into the matter to ascertain whether or not from the record of proceeding the breach of the rule of fair hearing has been occasioned. An order of certiorari may lie to cause the adjudicatory body in question to bring fort its record of proceedings for the perusal of the reviewing court. On another side, a party may seek an order of prohibition to cause the adjudicatory body from further proceeding in the proceedings when it is manifestly within the surface of reasonableness that fair hearing would suffer substantial neglect.
The person or entity launching a judicial review action must have sufficient standing or interest in the matter to justify the courts intervening on their behalf with respect to the decision of a public body. The court will not allow mere busybodies to bring proceedings to supplies the vital locus standi that the courts require before they would contemplate intervention in judicial review proceedings. Adesanya v. President illustrates the foregoing.
Failure to serve pre-action notice: Failure to serve the defendant a pre-action notice where one is required by law, would suspend the jurisdiction of the court the merit and urgency of the matter notwithstanding. Pre-action notice is an intimation of the plaintiff to the defendant of his intention to go to court against it/him of his grievances are not addressed. An Edict of the Benue State Government provides that no court action shall lie against a local government until one month after a written notice shall have been served on the local government by the plaintiff. Similarly, it has been provided in the National Port Authority (NPA) Act that an action can only lie against the authority after service of a pre-action notice on it. Eventually, it has been decided that where the plaintiff failed to study the law establishing a public body so as to know the procedure
UNRIPENESS OF THE ISSUE: To be entitled to invoke the jurisdiction of the court, the plaintiff must ensure that his matter is ripe for hearing. He must show that there is a dispute real which the court needs to solve. Any subject that does not present a problem which otherwise would be regarded as academic, hypothetical, speculative in line with the court’s decision in the case of Plateau State V A. G. Federation would ordinarily incapacitate the court.
Failure to exhaust administrative remedies: In the case of Whyte V Kuzych, the court held strongly that the case of the plaintiff would fail where he consciously failed to avail himself and to exhaust all administrative remedies before proceeding to the court.
Excess and Absolute Power of the Attorney General: The constitution gives the Attorney General both at the Federal or State level an excessive and absolute power to continue or discontinue a criminal proceeding at any time which his powers is not subject to judicial review.
Death of the Plaintiff: Where a plaintiff dies, a personal cause of action dies with him as he can no longer prosecute it. This is expressed in the Latin maxim action personal is moritur cum persona, meaning a personal right of action dies with the person who owns it.
1. Enlightenment: It is beyond argument that the bulk of Nigerians are illiterates who are majorly bordered about their daily bread. The grounds for judicial review require an enlightened and educated mind to comprehend its workability and modus operandi. The organizing of symposium and workshop by the men of the bar on ex gratia basis would go a long way to imbibe the legal process into the Nigerian mind.
2. Checkmating of the bench: It is without doubt that the independence of the judiciary is well encapsuled in the constitution yet, the judiciary is not an institution of robots which follows the instructions inculcated in it to the letter. The judiciary is a body of men and women who unfortunately are products of diverse social, political, economic and ethnic divisions. Some may turn out to be a ditch in the nobility of bench, who for personal benefits and self enrichment would sway the pendulum of justice to the highest bidder.
For judicial review to be risen, it means that there is defect in the proceedings in question. Actions should be taken to scrutinize to the dead end whether the cause of the defect was built on personal gains of the trial judge and where that is established, stringent punishment should be meted out.
3. Legislative expertise: Some of the laws or acts establishing adjudicatory bodies are clothed with ambiguity and multiplicity thereby causing the adjudicatory body to swim in the waters of confusion as to which interpretation or law best suit the circumstance and also could occasion the error law.
Furthermore, the legislative body should as much as possible amend or repeal or unify acts a laws which are document to save adjudicatory bodies from confusion.
A. W. BRADLY And K.D EWING, Constitutional and Administrative law
The Nigerian constitutional 2010 edition law; Ese Malame current principles and practice of administrative law in Nigeria (Chukwuma A.D. Chinwo) constitutional and administrative law,
Ese malemi, the Nigerian constitutional law, 2010 edition Chukwuma A.D. CHINWO, current principles and practice of administrative law in Nigeria.
Lluymade and Ska, cases and materials of administrative law in Nigeria, 2nd edition.
Black’s law dictionary 9th edition
Judicial Review in the Commonwealth Caribbean
By Rajendra Ramlogan
Encarta premium 2009
Constitution of Federal Republic of Nigeria 1999 (as amended)
Easy law Legalpaedia
Corporative landlord and Tenant law:EXAMINATION OF THE CONTEMPORARY VIEW THAT CUSTOMARY OVERLORDS AND CUSTOMARY TENANTS IS UNKNOWN TO GRUNDNORM FOR LAND ADMINISTRATION IN NIGERIA.
Land is very important to all Nigerians. The importance of land stems from the facts that before the advent of colonialism and the industrial revolution of the 18th and 19th century, Nigerians were predominantly farmers. Nigerians lived on and by the land. As a result of the importance of land it was seen as sacred and cannot be sold, since it is for the dead, the living and the unborn. Thus, land can only be pledged by the owners called overlords to customary tenants after performing some traditional sites, the tenant is put into possession for purpose of farming and the tenant pay tribute to the overlord. This was the situation until the enactment of the Land Use Act, 1978 which radically changed the concept of land ownership in Nigeria. Since the enactment of the Act, there has been the view that the concept of customary overlord and customary tenant is unknown to the grand-norm on land administration in Nigeria. The purpose of this paper is to examine the contemporary view that customary overlord and customary tenant is unknown to the grundnorm for land administration in Nigeria.
COMPRATIVE LANDLORD AND TENANT LAW
EXAMINATION OF THE CONTEMPORARY VIEW THAT CUSTOMARY OVERLORDS AND CUSTOMARY TENANTS IS UNKNOWN TO GRUNDNORM FOR LAND ADMINISTRATION IN NIGERIA.
Land is the most precious and valuable commodity of the ancient Nigerian. In the modern Nigeria, the value of land is still very high. Not only that land was the major source of livelihood. Our fathers lived on and by the land. To them it meant everything. It was for this reason that our whole existence and activities was tied to land and its ownership. Prior to the 19th century, the customary law has established a subsistence system of land tenure for the benefit of members of the family and the community. Land was then preserved for allottee mainly for cultivation and shelter with such degree of control consistent with the allodial title of the family or community. Land was therefore regarded as a natural wealth which must be preserved for posterity. Land was seen as something inalienable in the Nigerian ancient society. The social-economic changes that commercialized land as a result of western culture indeed eroded the concept of customary land tenure in Nigeria. This sacredness of land to the ancient Nigerian society was captured by an Ijebu-Ode chief concisely when he stated thus:
“I consider that land belongs to a vast family of which many are dead, few are living and countless members were yet unborn”.
One of the reason why land was seen as something inalienable is because of the supernatural mysticism surrounding it as land was seen as an ancestral deitywhich must not be parted with outside the traditional family or customary circle. This superstition was so strong that it was believed that parting with land was tantamount to parting with god given property. A learned author puts it succinctly thus:
“This inalienability of communal land was partly a consequence of the fluctuating and mythical constitution of the community, village or family, it was intended to protect the right of the unborn generation as well as the dead. It was considered an outrage against the departed ancestor whose spirit lay buried in the soil to sell the land, and an act of unwisdom to defecit the interest of the unborn”.
This juristic view has been affirmed by the court. In Lewis V Banole OSBORN CJ declaredas follows:
“alienation of land was uncountable, foreign to native ideas in the olden days”.
This entire position changed with the advent of colonization as also declared by the courts.
It was this view of preserving land that the Nigerian ancient society prefers to give out their land to others who has need of the land after performing some customary rites so that the ownership of the land will still be retained by the family or community as the case may be. This was the whole idea of customary tenancy. It is a relationship of landlord (customary overlord) and tenant (customary tenant), where the customary tenant pays tribute to the customary overlord and has the peaceful possession and use of the land until forfeiture.
With the enactment of the Land Use 1978 and the vesting of all the lands in the state on the governor, can the indigenous customary owners still claim overlords over lands that have been vested on the governor? Did the Act in deed as the grundnormon land administration in Nigeria recognize or abrogated customary overlords and customary tenancy?
The purpose of this paper is to examine the contemporary view that customary overlord and customary tenancy is unknown to the grundnorm for land administration in Nigeria.
DEFINITION OF TERMS
Customary tenancy creates in real sense a relationship of landlord and tenant between parties to it and is not in the nature of a mere occupational licence which confers no interest in the land. The landlord or landowner who lets the land to the tenant is the customary overlord who received tributes from the tenant called “the customary tenant”. This was the system of land holding under the land tenure system especially in the southern part of Nigeria before the enactment of the Land Use Act. The right granted to the tenant is a mere right of occupation. The tenant is a customary grantee of possessory interest which endures to perpetuity subject to abandonment or misbehavior.
2. Customary Tenant
A customary tenancy arises where a customary landowner(Customary overlord) grants to another person called the customary tenant at customary law, the right of occupation and use of the land in return for the grantee’s recognition ofthe title of the grantor and payment of tribute customary tenant has no equivalent in English law, as it is neither a leasehold interest, nor a tenancy at will, nor a yearly tenancy, the main incident of customary tenancy is the payment of tribute, not rents by the customary tenant to the overlord.
The theory behind the concept of customary tenancy is that where a tenant has been granted land for occupation and user, they are entitle to continue in peaceable enjoyment until they forfeit their right on such grounds as, for example, alienating a portion of the land to others without the prior consent of the grantor, of failure to pay customary tribute, or denying the title of the overlord as was held Per Ibekwe JSC in Lasisi V. TubiCustomary tenant has exclusive possession, hence, he has the right to exclude everybody else from the land including the overlord as washeld in Ayoola V. Ogunjimi
It is important to note that a customary tenant cannot deny the overlord’s title otherwise he will be liable to forfeiture and eviction. Moreso, a right of a customary tenant is limited to occupation and use of the land during good behaviour and do not include the right to alienate without the consent of the overlord.
3. Grundnorm for Land Administration
A norm is defined as a model or standard accepted (voluntary or involuntary) by society or other large group against which society judges someone or something.By Kelsonpure theory of law, laws are norms which derive their validity from a higher norm. A grundnorm therefore is a law from where other laws derive its validity. The grundnorm administration of land in Nigeria is the Land Use Act. The Act set aside the age long tenure system and replaced it with statutory right traceable to the grant by Governors or the Local Government. One may argue, and rightly too, that the grundnorm in Nigeria is the 1999 Constitution.
It is worthy to note that the Land Use Act, 1978 has been entrenched in the 1199 constitution in section 315(5) and (6) just as it was entrenched in section 274(5) of the 1979 constitution, In the case of Nkwocha V. Governor of Anambra State, the supreme court held that the Land Use Act is not an integral part of the 1978 constitution but an ordinary status which became extra ordinary by virtue of is entrenchment in the constitution. Similarly, In Ogunleye v. Oni, Belgore JSC held that the Act ia revolutionary and it was meant to streamline Land Use and management in the entire federation. It is crystal clear that that there is no statute that touches on Land administration like the Act itself.
NATURE OF CUSTOMARY TENANCY
A customary tenancy creates in a real sense the relationship of landlord and tenant between the parties to it and is not in the nature of a mere occupational license which convers no interest in the land.
According to a learned author, customary tenancy arises where a customary landowner grants to another persona at customary law, the right of occupation and use of the land in return for the grantee’s recognition of the title of the grantor and payment of tribute. On his part, the erudite jurist Dr. Onuoha opined that he is not a licensee but a customary grantee of possessory interest which endure to perpetuity subject to abandonment or misbehavior.
This position of the law found support in the view of Elias CJN (as he then was) in the case of Josiah Aghenghen&ors V. Chief MadukaWaghoreghor&ors as follows:
“In customary land law parlance, the customary tenants are not gifted the land, they are not ‘borrowers’ or ‘lessees’; they are grantees of land under customary tenure and hold, as such, a determinable interest in the land which may be enjoyed in perpetuity subject to good behavior”.
Customary tenancy has no equivalent in English law, as it is neither a leasehold interest, nor a tenancy at will, nor a yearly tenancy. The main incident of customary tenancy is the payment of tribute, not rents, by the customary tenant to the overlord.
The theory behind the concept of our customary tenancy is that where strangers or immigrants have been granted land for occupation and user, they are entitle to continue in peaceable enjoyment until they forfeit their right on such grounds as, for example, alienating a portion of the land to others without the prior consent of the grantors, or by failure to pay customary tribute, or by denying the title of the overlord as was held per Ibekwe JSC in Lasisi V. Tubi.
A customary tenancy is not synonymous with absolute gift of land, customary tenancy creates a determinable interest on land and though enures in perpetuity, it may be determined upon occurrence of certain event which may never happen contended by Prof. Smith . The interest of a customary tenant on the land granted enures in perpetuity and has been regarded by the courts in practice as practically indefeasible especially after permanent building or other forms of improvement like extensive commercial farming and/or occupation have been established thereon by grantees … customary tenancy has exclusive possession hence, he has the right to exclude everybody else from the land including the overlord as was held in Ayoola V. Ogunjimi. Unless the tenancy so permits or the tenancy has been lawfully determined, the grantor has no right whatsoever to enter the land without the permission of the customary tenant. This right of the customary tenant avails against a purchaser of the grantor.
This issue came to the fore in Lasisi & anor V. Tubi&anor, where some members of the Aloto’s family sold land to one Odutola through whom the respondents claim title to the land. At the time of the sale the appellants were already settled on the land as customary tenants of the Oloto’s family. On the question whether a purchaser of the radical title of the overlord such as the respondents could successfully eject the overlord’s customary tenancy who had settled on the land before sale, the Supreme Court held that the purchaser of the overlord’s radical title was without power to eject the overlord’s customary tenants who had settled on the land before the sale and that at best such purchaser can step into the shoes of the overlord.
A customary tenant in claiming against a third parting for trespass and consequential damages resulting there from, must claim as such and not as the owner otherwise the claim will fail. In Shell BP V. Abedi & ors the Supreme Court held that a claim based on ownership of the land by customary tenants in possession would not entitle them to claim for compensation for damages done to things on the land and that the evidence of possession becomes irrelevant.
Also while the overlord has an obligation not to derogate from the grant, the customary tenant has an obligation not to deny the overlord’s title otherwise he will be liable to forfeiture and eviction. It is important to state that the right of the customary tenant are limited to occupation and use of the land during good behavior and do not include the right to alienate without the consent of the overlord.
Thus, in Onisiwo V. Fagbemiro where a customary tenant leased the land to a third party for 50 yrs and an option for renewal for another 25 years at the expiration of the first one, the court held that the execution of the lease itself is sufficient misconduct to make the defendants (customary tenants) liable to forfeiture. Again, the customary tenant must use the land for the purpose for which the land was granted. Where the tenant uses the land for other purpose them that for which it was granted to the extent that it causes a permanent injuring to the land, the grantor may bring in action in damages.
Furthermore, there appear to be a disagreement as to whether there is a distinction between payment of tribute and rent, and customary tenancy and customary lease. In EJEANALONYE V. OMABUIICEElias C.J.N attempted to distinguish between tribute and rent thus:
“it is interesting to observe that this case illustrate clearly the distinction drawn by customary law between the grantee of land as customary tenants which the plaintiffs were…and grantee of land under a tradition form of “lease” which the defendants obviously were. The customary tenants pay tribute and enjoy perpetuity of tenure subject to good behaviour…the customary lessee, on the other hand, is granted land for a consideration such as the payment of N200 by the defendant in this case to the Osuche family as their landlord on a yearly tenancy. It is to be noted that as pointed out by P.W.1 the giving of any form of present does not form part of the rent for a customary lease. It should be noted that P.W. 1 testified as follows:
Defendant pay rent, they don’t pay homage to us. When we showed the defendant the land they brought a goat. Goat is not part of the rent”
However, the same Supreme Court per Aniagolu JSC in the case of Muhammed Ojamu V. SalawuAjoo held as follows:
“…payment of rent or customary tribute as agreed, by a customary tenant following the grant made, complied with going into possession, gives the customary tenant a right of possession which the law protects even against a subsequent purchaser of the radical title in the land. Whether the tenancy be regarded as a customary tenancy in which case the respondent is regarded as a customary tenant, or the tenancy be regarded as a customary lease by reason of a the yearly payment of rents by the respondents to the ojora chieftaincy family, in which case the respondent is regarded as a customary lessee (see Ejeamalonye V. Omabuike (supra) at p. 301), the practical effect in this case on appeal is the same, namely, that a right of possession had enured to the respondent which was not defeasible by the subsequent lease of the land by deed by the Ojora chieftaincy family or a faction thereof, to the appellants.’’
It is submitted that distinction between customary tenancy and customary lease is not necessary insofar as the effects are the same.
J.F. Fekumo, contends that both a customary tenancy and a customary lease mean one and the same thing hence he agree with Aniagolu, J.S.C that the practical effect is the same. The most relevant incident is the perpetuity of tenure and not whether the consideration is rent or tribute. The view of the learned author got support in the more recent decision of the Supreme Court in the case of Andu Makinde V. Dawadu Akinwale where it was held that there can be customary tenancy without payment of tribute.
It is submitted that the view of J.F. Fekumo and that of Aniagolu J.S.C is plausible. If the effect of both are the same, then distinction is Otiose.
Customary tenancy can be terminated by accomplishment if the purpose of the tenancy i.e where the purpose of tenancy is accomplished it automatically determines; abandonment where the tenant abandons the land without any intention of coming back, this however is different from living the land fallow for the purpose of recuperation of the soil. Finally, by forfeiture this is where the tenant engage in acts constituting misbehavior which undermines the interest of the overlord title over the land in question. This is the right enforceable by the overlord against the tenant basically in court. what amount to misbehavior may include alienation of part of the land under a claim of ownership refusal to pay tribute or setting up an adverse title against the overlord.
This is a form of customary tenancy practiced in eastern part of Nigeria especially in Anambra State, particularly in Onitsha. Under this type of holder an owner of land grants his land to a grantee loosely described as tenants for a Kola or other payment and sometimes for no consideration at all. Kola tenancy has the main feature of most customary tenancies; it creates a landlord and tenant relationship between the parties to it, and it is more than occupational licence in which confer no interest in land. Kola tenancy as defined in section 2 of the kola tenancy law 1935 as a right to use and occupation for kola or other token payment. Thus a kola tenant enjoys all the right of the grantor except that he cannot alienate or transfer absolutely the land of the grantor. In Daniel V. Daniel it was held that a land held at Onisha under Kola tenancy could not be alienated by the current holder who inherited it through his mother and that the fact that she had contracted a marriage under the marriage Act did not necessarily make the land devolve under English law.
Finally, a Kola tenancy is not an estate of inheritance. Kola tenancy is always granted for the life time of the original tenant so that his inheritor had to give a fresh kola on succession to the land in acknowledgment of the grantor’s title as was held in Udensi V. Mogbo per Idigbe J.S.C.
RIGHTS OF A CUSTOMARY TENANT
(a) Right to exclusive possession or occupation under Ketive law and custom. Once land is granted to a tenant whatever the consideration, full right of possession sure conveyed to the grantee “full right of possession” in this context means exclusive possession or occupation. Any unlawful entry to the land is actionable as trespass. The tenants have exclusive possessory of the grantors reversionary right . An injunction will not lie against a customary tenant because he is in possession.
b). Non-Derogation from Grant by Grantor. Once a grant is validly made to a customary tenant, the grantor cannot derogate from the grant. This position of the law was aptly stated by Elias C.J.N in Aghenghen V. Waghoreghor as follows:
“A very important factor is that the grantor of land, once it has been given to the grantee as customary tenants, cannot thereafter grant it or any part of it to a third party without the consent or approval of the tenants. The grantor is not allowed to derogate from the grant”.
Thus any grant in derogation of the grant is bound to be declared null and void apart from being an act of trespass.
In Ojomo V. Ajao a customary landlord was held liable for damages in trespass when he granted the land under a customary tenant to another person and the uncompleted building ordered to be demolished. In Esi V. Itsekiri communal land Trustee where the grantors, in derogation of the grant leased out the land to others, the lease was declared null and void.
C. Right to Appointment: This is the sharing of compensation arising from the compulsory acquisition of land, or damages arising from petroleum operations; or other monies between the customary tenant and the overlord. In Aghenghen V. Waghoreghor, the Supreme Court held that the principle of apportionment is also part of Nigerian land law, and that it does not arise from contract, but based on equity.
The right to apportionment of compensation in acquisition of land statutorily arises from section 23 of the public lands Acquisition Act 1917, which is similar to both section 21 of the Oil Pipelines Act, 1956 and section 29(3) of the Land Use Act 1978. The Supreme Court in interpreting section 23 of the Public Lands Acquisition Act in Chief Sam Warri Esi V. the Chief Secretary to the Federation held that the trial judge was right in apportioning the said compensation in the proportion of one-third share to the 1st claimant (overlords) and two-third share to the 2nd claimant (the customary tenant). It was the view of the court that the one-third share to the overlords, is the nominal tribute lost by the compulsory acquisition.
OBLIGATION OF A CUSTOMARY TENANT
According to Prof. Nwabueze there are four obligations of the customary tenants to the customary landlord which includes: obligation not to deny grantors title; obligation not to deny grantors title; obligation not to alienate without grantor’s consent; obligation not to use the land for a different purpose and obligation to pay customary tribute or rent. In the case of Ojomo V. Ajao the Supreme Court per Obaseki J.S.C observed as follows:
“It is well settled law that a customary tenant’s obligations are (1) to pay his rent into which tributes formerly paid in olden times have been converted (2) be of good behaviour and (3) at all times acknowledge the title of the land”.
The Supreme Court in the above case was in all fours with the view expressed by professor Nwabueze save “not to use for a different purpose.”
I have earlier on in this paper discussed the effect of these obligations of the customary tenants as set out juristically and judicially what is paramount as submitted by a learned jurist is that a breach of any of the above obligation of the customary tenant usually leads to the determination of the tenancy through either forfeiture or abandonment. Having critically ex-rayed the nature of customary tenancy, What is left is to answer the question whether customary overlord and customary tenancy is unknown to the land use Act, 1978.
IS CUSTOMARY OVERLORD AND CUSTOMARY TENANCY UNKNOWN TO LAND USE ACT?
The primary role of land under customary law is for subsistence cultivation and building purposes which has over the years precipitated undue fragmentation of land (especially in no urban areas) was fast becoming obsolete due to the social-economic condition as there was need to make land available for mechanized large scale agricultural and industrial development.
The foregoing circumstances necessitated the role of the law as an instrument of social change hence the enactment of the Land Use Act. The conception of the Act as a piece of legislation is far from being an emasculation of the pre-existing system of customary land tenure, rather, it is meant to solve the various social-economic problem associated with it, establish a uniform land policy to cater for the need of the society, eradicate the multifarious problems associated with the issue of title to land in Nigeria, and ensure availability of land for agricultural and industrial development. The Act has been described indisputably as “the most impactful of all legislation touching upon the land tenurial system of this country before and after full national hood by Irikefe J.S.C (as he then was) in Chief R.O. Nkwocha V. Governor of Anambra State. This description might be right, as will be shortly seen, for the case law and legal literature on the Act evoke some sort of mixed feelings, confusion and uncertainty, as to the actual tenurial effect on the existing titles and interest in land
The most radical of all the sections of the Act appears to be sections 1 and 2, especially section1 which vested all the land in the state in the governor to be held in trust and administered for the use and common benefit of all Nigerians. The most controversy is on the meaning of the word “vested”, the nature of trust created by the Act and whether section 1 of the Act amount to nationalization or expropriation of land in Nigeria.
In the case of Tijani Akinloye V. Chief Oyejide Ogundave J. (as he then was) flew a kite when he observed as follows:
“…what is the legal effect of the Land Use Act 1978 on the title of owners of land who held absolute or freehold title prior to 29th March, 1978 when the Act came into being? The answer to this question lies in the interpretation of section 1 of the Act… in my humble opinion…the use of the word “vested” in section 1 of the Land Use Act, 1978 has the effect of transferring to the governor of a state the ownership of all land in the state. In coming to this conclusion I am mindful of the fact the effect would be to deprive citizens of this country of their ownership in land and vesting same in the respective state governors…it follows that the Act is inconsistent with statutory provisions and customary law existing at the time the Act came into effect vesting ownership to land in a person or bodies other than the state government and to the extent to this repugnancy I hold such statutory provision and customary law ceased to have effect..”
The above view of the effect of section 1 of the Act appears not to represent the correct interpretation of section 1 as this will mean that the governor now owns the land. The Supreme Court appear to have taking a better interpretation in the case of Savannah Bank of Nigeria Ltd V. Ammel O. Ajilo, BelgoreJ. S.C in interpreted section 1 and 2 of the Act observed as follows:
“There has been no statute like this before. It took away the land from every “landed gentry” and vested it for administration in the Military Governor of the state in which the land is situated for management and control for the benefit of Nigerians. The Military Governor has not got the land vested in him as beneficial owner far from it. The vesting in this instance is for administrative and management purpose in trust for all Nigerians…the management and control is in the governor for land in urban areas and other land (in rural areas to be so designated in accordance with the Act) shall be under the management of the local government with in which the lands are situated… the meaning of “vested” in section 1 of the Act, in its context does not imply personal interest to the military governor, but merely gives the governors power of superintendence in the sense of management and control as provided in section 2(1) thereof, in trust for all Nigerians. The military governor by the intendment of the Act is not made a beneficial owner but a manager or controller of the use of the land within the state he administers for the benefit of all Nigeria”.
It is submitted that the above view is plausible and truly reflect the intention of the framers of the Act as the Act never intended to transfer the land to the governor of a state as an owner and thereby divesting the indigenous owners of their land as envisage in the Oyeide case (supra).
Professor Fekumo has argued that the interpretation of section 1 and 2 of the Act in Ajilo’s case is more in line with the provisions of section 34(1)-(6) and 36(4) of the Act in relation to transitional provisions, where the word “vested” also occurs. He contended that the implication of the interpretation given in Oyejide case is that section 1 should be read subject to section 34 and 36, which preserve the ownership of erstwhile owners, albeit in form of a right of occupancy, statutory or customary.
It should be noted that the Supreme Court has held in clear terms in Nkwocha V. Governor of Anambra State that the land by section 1 is vested in the governor as a trustee for the benefit of all Nigerians.
Karibi Whyte J.S.C (as he then was) gave a lucid meaning of the phrase beneficial owner” in the case of Alli v. Ikusebiala as follows:
“…the land nominally vested in the chief or Mogaji is not vested in him beneficially or an absolute owner, but in his representative capacity..there is consequently no escape from the concept that beneficial ownership of family or communal land is vested in the family...”
He further posited thus:
“Where a person contract by himself as a beneficial owner,… he is vested with all the rights and privileges legally possible for an owner in respect of such family…”
Having established that the governor holds the land in trust for all Nigerians, the question therefore is what is the nature of trust created by the Act? Is the trust created in the real trust concept as stated by salmond on jurisprudence? An answer on the nature of the trust was provided by Balogun, J in Otumba chief Adewummi V. Ogunbowale as follows:
“The concept of trusteeship is used in section 1 of the land use Act, as enacted, in a loose sense. It is not intended to confer upon every citizen of Nigeria the benefit which a beneficiary has against the trustee under the common law. No Nigerian citizen can under the section as enacted claim against the ‘Military Governor’ an account for any benefit accruing from land held by him under the Act in trust and administered by him for the common benefit of all Nigerians.”
In view of the above, Prof. Fekumo submits that the legal trust’ created under section 1 is simple “trust ownership” and not necessarily a legal estate. On their part Prof. Adigun and Utuama has opined in view of Fekumo’s submission that a trustee in the orthodox sense is the true legal owner of the trust property and can give a valid title thereto. A beneficial owner has no right in ream which he can dispose. In relation to the Act both the Governor as a trustee and the so-called beneficiaries have property in ream over which they have the right of disposal. The leaned jurists’ contended that the trust concept in the provision is anomalous and appears to have no equivalence in English jurisprudence since no Nigerian can bring an action against the governor to give account in respect of profit accruing from the land, they concluded by asking a question, what than is the function of the trust in the provision one may ask?
From the above contentions, Prof. Fekumo submitted that “the purport of section 1 is to translate the concept of family or community holding of land to the state by vesting all land in the governor. This view is in line with the view of Karibi-Whyte J.S.C (as he then was) in the case of Abioye V. Yakubu”.
It is submitted that both the view of the learned author and Karibi-Whyte J.S.C in Abioye case are not infallible, hence I disagree with the views. I contend that the purport of section 1 of the Act cannot be a resemblance of family or communal land holding as the position of the governor under section 1 cannot be likened to the position of the family head or village head under family or communal land holding. For instance, while the head of the family is accountable to family members, the Governor of a state is in no way accountable to any Nigerian, if they are at all, it is a loosed accountability. Also, while an alienation of family land by a family head is voidable ie valid until it is avoidable by family members, an alienation of state land by the Governor is valid ab initio as the alienation is presumed to be for the benefits of members of the state, whatever that means. How then can the position of the governor under section 1 be likened to that of the head of the family or community under family or communal land holding?
What then is the impact of the Act on customary tenancy? Although there is no provision in the Land Use Act specifically preserving the customary land tenure as an institution, there are different provisions of the Act testifying to such preservation so that today, there is no doubt (either in theory or in practice) that the institution exist. What section 1 of the Act has done is to sweep away the unlimited rights and interest Nigerians had in their lands and substituted limited rights in the form of a right of occupancy either statutory or customary. The transitional provisions of the Act clearly recognizes and protects existing rights in that limited form. Also in the definition section, customary right of occupancy is defined thus:
“The right of a person or community lawfully using or occupying land in accordance with customary law…”
Also the definition section defines an occupier thus:
“Any person lawfully occupying land under customary law and a person using or occupying land in accordance with customary law..”
The effect of the above two provisions is that the right of any person or community using or occupying land in accordance with customary law is preserved though in a limited form, it is this right of occupancy the customary land owners enjoy and pass to third parties and upon it rest customary land relationship.
It is worthy of note that section 34 to 36 appears to protect customary land owners before the commencement of the Act. Section 34(4) of the Act recognizes inter alia, “any encumbrance or interest valid in law” to which such land was subject on the commencement of the Act thereby preserving customary pledge, and also customary tenancy.
The Act has converted titles whether customary or freehold into rights of occupancy, the radical title having been vested in the governor.
Thus customary land owners after the advent of the Act where deemed to be the holders of a right of occupancy depending on the status of the land, that is whether the land is in urban or non-urban area. By section 34 of the Act the person entitle to a statutory right of occupancy and who may apply for certificate of occupancy is the person to whom the land was vested before the commencement of the Act and such person is called the holder. However, the use of the world “holder”/ occupier’ in section 36(2)- (4) has been a subject of contention. In Abioye V. Yakubu, “it was contended that it would appear that the draftsman was undecided as to the person entitle to customary right of occupancy as between the ‘holder’ and ‘occupier’ or that the two interest were taken to be equal.”
According to Prof. Smith the use of the word ‘holder’ and ‘occupier’ in the section does not unequivocally point at the land owner mainly and in the absence of any judicial interpretation to the contrary may include a customary tenant. Interpreting the section the Supreme Court in OnwukaV. Ediala held that the land owner is the one who is clothed will full possession and can apply for certificate of occupancy.
The learned author submitted that what weighed much in the mind of the court was the use of the word ‘vest’ as opposed to the word ‘occupy’ for while it is true that immediately before the commencement of the Act, the land was vested in the customary landowner as owner, the customary tenant in occupation had a de facto as opposed to legal possession; limited possession as opposed to full possession. He concluded by positing that the Act never intended to enlarge the right of a customary tenant to any piece of land in non-urban which was at the commencement of the Act, in his possession and occupation. Oputa J.S.C puts it clearly in the case of Onwuka V. Ediala as follows:
“It was not the aim of the land use Act to convert a tenant into an owner merely by the fact that such tenant was in occupation of the land.”
It is worthy of note that section 36(2) and (3) portrays a different picture of the status of a landowner with regards to land in non-urban area which is been used for agricultural purpose before the commencement of the Act. The person entitle to certificate of occupancy under this situation is either a holder or an occupier in possession of the land for agricultural purposes. Thus the landowner cannot be entitle to a customary right of occupation unless he is in addition in possession of land for agricultural purposes. This is in conforming with the decision of the supreme court in Abioye V. Yakabu where the court held that if the intention of the draftsman was to treat agricultural land in the same manner as developed land, the Act would have used the terminology “the person to whom it was vested”. According to the learned Attorney General of Cross Rivers State who was one of the amicus curiae, the whole tenor of section 36(2) & (3) in particular and the general provision of the Act as the preamble suggest is to make land available to those who need it and not those who have it but have no use of it.
Moreso, section 35 of the Act on compensation on customary land in certain cases suggest that the institution of customary tenancy is recognized and protected. Section 35(1) provide thus:
“Section 34 of the Act shall have effect not withstanding that the land in question was held under a leasehold, whether customary or otherwise…”
The Supreme Court of Nigeria has clearly adumbrated the preservation of the customary land tenure system in most of its recent decisions. In Ogunole V. Eiyekole & ors the court held thus:
“Land is still under customary tenure even though dominium is the governor the most pervasive effect of the land use Act is the diminution of the plenitude of the powers of the holders of land. The character in which they hold remain substantially the same…”
What is more? The effect of the Act is that customary land owners now has a limited right in form of right of occupancy, the radical title is now in the governor. Therefore the position of the overlord is that of a tenant subject to the administrative powers of the governor or the local government. But the position of the tenant has not altered, he has no more than an occupation right in the land and still subject to all the incident of the tenancy. Although the tenant holds the land in perpetuity subject to good behaviour, his long possession coupled with good behaviour does not enlarge his tenure.
However, it is worthy to note that the right of a tenant to enjoy the land in perpetuity subject to good behaviour is now precarious since he automatically loses that right when the overlord’s right of occupancy is revolved by the governor.
It also worthy of note, that before the Act, the principal remedy of the overlord when the tenant commits breach is forfeiture. In Kasali V. Lawal. The court of Appeal held that the tenor and incidents of customary tenancy have been swept away, by the combined effect of sections 1, 36 and 37 of the Act and “therefore that the court can no longer make a forfeiture order over such land except as provided for under the land Use Act dealing with revocation of rights of occupancy.”
This decision it is submitted is erroneous as it tends to divest the landowners of land and cloth the tenants with right of the landowner which is contrary to customary land tenure system. While it is correct that by section 36 of the Act, the customary tenancy acquires a right to occupy and use the land, there is no express provision divesting the land owner of the right to tribute, recognition by this tenant of the landlord reversionary right and the right to forfeiture.
However, the Supreme Court has consistently refused to align itself with the decision of the court of Appeal. In Salami V. Oke the Supreme Court clearly puts the position per Obaseki J.S.C thus:
“It is a mis-statement of the law to say that the land Use Act abolished the remedies or reliefs or forfeiture available whenever a tenant disputes the right of the overlord or landlord…”
I can no more put align myself soul and spirit with the above decision.
It is now well settled by the case of Abioye V. Yakubu that the Land Use Act has not abolished customary tenancy, and that the traditional landowners who now holds a right of occupancy can effectively grant a customary tenancy in so far as the consent provision of the Act are complied with.
Bello C.J.N puts the law clearly in Abioye V. Yakubu as follows.
“Upon the construction of section 36 and 50 (now 51) read with the other provision of the Act, I hold that the sections were not tantamount to divesting the customary owners of their customary right vis-à-vis their customary tenants. The customary right of the customary owners was impliedly preserved by the sections”.
This indeed represents the position of the law today as it affects customary overlords and customary tenant in Nigeria. Just to add that the Act has created a tripartite form of land holding viz: the Governor, the land owner, now a tenant and the sub-tenant. Hence the contemporary view that customary overlord and customary tenant is unknown to land administration in Nigeria is unfounded.
Without much ado, I want to state categorically that the Land Use Act needs a comprehensive review or amendment to avoid unnecessary litigation due to inelegant drafting. The inelegant drafting has led to avoidable litigation like we saw in Ajilo’s case which was cause by inelegant drafting of section 22 of the Act which provide that “it shall not be lawful for a holder of statutory right of occupancy granted by the military governor to alienate his right of occupancy without the consent of the governor’’, the Act is silent on the question of consent with respect of a holder of a deemed statutory right of occupancy under section 34 of the Act. It took the intervention of the supreme court who applied the purposive approach of interpretation by holding that by the object of the Act to hold that section 22 applies to holders of right of occupancy expressly granted by the governor as well as those deemed under section 34 being transitional provision.
It is also recommended that section 36(2) and (3) be amended to solve the inherent danger in the indiscriminate use of the word “holder” and “occupier” which created a problem in the case of Abioye v. Yakubu
Again while section 1 of the Act vested all land in the state where the land is situated in the governor, there is no provision in the Act vesting any land in the local government. The question therefore is by what authority is the Local Government granting customary right of occupancy. This is one of the loopholes in the Act that requires urgent amendmentsince no man can give what he himself does not have even when section 47(1) ( c) ousted jurisdiction of the court to entertain the question as to whether the Local Government has the right to issue such customary right of occupancy.
Also, section 47(2) should be amended to enable aggrieved person over the payment of inadequate compensation to have access to court in accordance with section 46 of the 1999 constitution,
Friday, 14 April 2017
Customary law is a custom which is accepted as binding by a people. Customary law is the body of custom which from long use have acquired the force of law among a people. Custom is a way of life. It is the way of life of a people. Customary law is a custom that has the force of law. Section 258(1) of the Evidence Act, 2011, defines custom as:
“A rule which in a particular district has from long usage obtained the force of law”.
Customary law, is the indigenous law of the various peoples or ethnic groups of Nigeria before the advent of foreign laws into Nigeria, in the form of religions law, English law, statue law and so forth. Customary law is the indigenous laws of the various peoples of Nigeria and Africa as opposed to English law, statute law and so forth.
Customary law consists of ethnic customary laws and Islamic law. Thus when we refer to customary law, it includes both ethnic custom which are unwritten and Islamic law which is in written form. The issue with customary law is, it is a question of fact and liable to be proved by the person alleging the existence of that custom. Section 18 of the Evidence Act and Ajikanle V. Yusuf (2008)2 N.W.L.R (PT. 1071) 301 .
In Ajikanle V. Yusuf (supra) at Pp. 326-327, paras F-A (ratio 14), the court of Appeal, Ibadan Division held that:
‘By the combined effect of S.14 S.13 of the Evidence Act, therefore, a given custom is a question of fact and where material to a party’s case same must necessarily be pleaded and proved. Where, however, the very custom have been acted upon be superior court in the area from which the claim evolved or the custom had acquire such notoriety and judicial notice of the custom is taken, the court thereby dispenses with its proof. A plaintiff in that instance still pleads the very fact of the custom and those facts on the basis of which he ruled, at trial, pray the court to dispense with proof and instead take judicial notice of the very custom which entitles him to the reliefs seeks from the court. The mere ipse dixit of the person who alleges a custom would not suffice even through no particular number of witnesses or the fact that it had applied more than once by a superior court is required for its proof. See Ozogula V Ekpenga (1962)1 ALL NLE 265, (1962)1 SCNLR 423 and Olubunmi Cole & ANOR V. Akinleye & Ors 1961 All NLR 294 at 296 (1960) SCNLR 192”.
In another, instance, the practice of primogeniture among the Bini people has become notorious, in view of the supreme court decision in Ogiamien V. Ogiamien (1967)5 N.S.C.C. 189. Therefore, a party claiming the existence of custom need not call witnesses to establish that such custom exists. The courts can also take judicial notice of the existence of that custom under section 122 of the Evidence Act, a custom may be judicially notice upon a single decision by a superior court. The requirement of a number of decisions as envisaged under section 14(2) of the repealed Evidence Act is no longer the law.
In the Supreme Court case of Oyewunmi V. Ogunejan (1990)21 N.S.C.C. (pt. 11) 240 at p. 257, customary law was defined by Obaseki JSC, in the following winds.
“Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that, it is not static. It is regulating, in that it controls the lives and transaction of the community subject to it. It is said that custom is a mirror of the culture of the people. I would say that customary law goes further and import justice to the lives of those subject to it”.
The same supreme court in the case of Zaidan v. Mohssen (1973)8 N.S.C.C. 516 at p. 525, had this to say about customary law:
“We are of the view that in this context, customary law is any system of law not being the common law, and not being a law enacted by any competent legislature in Nigeria, but which is enforceable and binding within Nigeria as between the parties subject to its sway”.
For a custom to be accepted as valid and obligating in any community in Nigeria it must pass validity test. The validity test is a legal requirement that a custom must not be repugnant.
Public policy nor
Incompatible with any law for the time being in force.
In the case of Rivers State, section 18(1) of the High Court law of Rivers State, 2001 provides that:
“The court shall observe and enforce the Observance of every local custom and shall not deprive any person of the benefit thereof except when any such custom is repugnant to natural justice, equity or good conscience or incompatible, either directly or by necessary implication with any law for the time being in force”.
From the above position, for a peace of custom to be applicable, it must pass the repugnancy and incompatibility test. See Ojiogu V. Ojiogu (2010)8 NWLR (Pt. 1198)1 and section 18(3) of the Evidence Act.
These legal requirements are the validity text a custom must satisfy to be enforced as customary law. When a custom satisfies the above legal requirements a validity tests, a court of law will enforce it as a customary law among the members of the community to which it applies.
Finally, a customary law is usually flexible and is either unwritten or party written. However, a custom must exist at the time a party is claiming it, otherwise a court of law will not apply it customary law is often applied by a court as a judicial precedent. Similarly as stated earlier a court may take judicial notice of a customary law.
LEGISLATION AND STATUTE
A legislation or statute is a law enacted by the legislature and it is usually in a written form or code. Legislations or statute are the main source of law making. Also law reforms by amendment, expansion, repeal and so forth.
The National Assembly of Nigeria has power to make laws for peace, order and good government of Nigeria (section 4(2) and (7) of the 1999 constitution on amended. Be legislation or statutes are usually in written form and are therefore called written laws, as opposed to common law or customary law which are not strictly in codified from. Where laws are enacted in the legislature such as the National Assembly or a State House of Assembly, which are made up of the elected representative of the people, the law has to be passed according to the prescribed legislative procedure. (First, second and third readings and debate. Some of the laws require two third votes of the total members of the legislature to become law, whilst others require only a simple majority of votes. The National Assembly in Nigeria is made up of two houses, the Senate and the and the House of Representative this is Upper and Lower house respectively.
In the state, there is a single House of Assembly. After a bill as a law is first called has been passed, it has to be sent to the president or the state governor who assents to it by subscribing that is appending his signature to it and it becomes law. Where assent is withheld, the legislature may on its own by the required majority of votes pass the bill into law. See sections 58(5) 59(4) 100(5) of the 1999 Constitution as amended. The National Assembly and states Houses of Assembly can enact statutes within the ambit of the legislative list assigned to them by the constitution.
ACTS AND LAWS
Statutes enacted by the Natural Assembly are called Acts of parliament whilst statutes passed by a state House of Assembly are called laws. Various Acts and Laws have been passed to regulate different aspect of life in Nigeria. Law making and reform is a continuous exercise. Law reform society and society reform law. It is a continuous exercise.
DECREES AND EDICTS
When a military government is in power, a statute passed by the Federal Military Government of Nigeria through the ruling military council is called a Decree, whilst a law enacted by the Military Government of a State is called Edict.
However, a government may be law convert and deem specified decrees and edicts to be Acts a law and from the date of such legislation making the conversion, the affected decree or edict may be properly called and referred to as Act a law. (The forth schedule of the 1999 constitution as amended similarly decrees and edicts which are not repealed by the constitution are automatically converted to Act, and laws when civil rule is installed.
Legislation passed by a local government council are known as bye-laws or by-laws. Many local government councils in Nigeria have various bye-laws, with aspect to matters over which they have power to make law under the constitution such as collection of rates, establishment and maintenance of cemeteries, Motor Parks, Naming of Roads, registration of birth, death and marriages, shops sale of liquor and so forth as listed under the functions of a local government council in the 1999 constitution as amended. (Fourth Schedule of the 1999 Constitution).
Delegated legislation is legislation be some administrative person, authority, body or agency, under a power given by the constitution or an enabling statute permitting such administrative authority to make laws makers include
Chief Justice of Nigeria and Chief Judge of the State
Public (corporation, agencies, statutory bodies and so forth).
Acting under appropriate enabling statutes which empower them to make such delegated legislation.
These delegated law making are known as delegated, subsidiary or subordinate legislation. Delegated or subsidiary or subordinated legislation is usually controlled by parliament in that the proposed rules and regulation are printed and laid before parliament which may then debate them and approve them for enforcement, amend or otherwise reject it as the case may be.
These regulations when made in the stipulated manner are just as much law as the parent statute itself. They are an indirect form of legislation and may take to form of
Statutory instruments such as regulation rules, orders and directives.
Orders in council
Rules of court and so forth
CASE LAW: THE DOCTRINE OF PRECEDENT
The idea of precedent derives basically from the universal habit of mind to follow past examples. Case law is law formed from the legal principles of a case. Case law is law formed from earlier decided cases. It is law based on judicial precedent, that is the practice of following precedents or law laid downing earlier cases. Case law is law based on the principle of STARE DECISIS, which means, the practice of standing be, following or applying earlier decisions provided that the case a hand is similar to the earlier case or cases sought to be followed. Thus case law is law, according to successive like decided earlier case. The doctrine of stare decisis is the principle of English law that precedents are authoritative, binding and must be followed unless there is a reason to deviate. The doctrine of stare decisis is the requirement that court should stand by or apply an earlier correct decision. Accordingly, where there is no existing law on a matter, a judge in such an instance can go ahead and give a decision, such decision then becomes a precedent or case law which may be followed in subsequent similar cases, especially if the precedent correctly states and represents the law on such given matter. In both civil and criminal cases judges usually state the reason for their decision when giving a ruling or judgment. In future when a case involving similar facts comes before them the judges will refer to the reasons for the decision in the earlier case if the principle of law to be applied in the present case is the same, the judge will then follow the earlier decision that is the legal principles established in the earlier case. This practice of following the legal principles a law laid down in earlier cases that are similar to the case at hand causes law to be more certain and uniform in application. The law so laid down in earlier decided cases is called case law or judicial precedent as opposed to statue law which is usually codified at the instance of the relevant law marker or customary law which usually grows overtime from custom of the people subject to the customary law.
AUTHORITY OF CASE LAW
When the hierarchy of courts in Nigeria, every court is absolutely bound by the decisions of court above it. The bindingness of a decision, case or precedent is according to the hierarchy of the court that decided it. Likewise, the position in other countries, the judgment of the higher courts in Nigeria such as the supreme court at Abuja and the court of Appeal which has several division sitting in various party of the country have always commanded the greatest respect. The general rule in the Nigeria legal system which is derived from England is that the decision of the higher courts in Nigeria binds the lower courts. This the decisions of the supreme court which is the highest court in Nigeria binds all courts in the country, excepts to Supreme Court overrules the case or declares such case as a case decided.
Per incuriam (in ignorance) or a case decided based on its peculiar circumstances and which is not to be followed in other cases except where reliance is unavoidable such as, where a similar situation re-occurs.
Abiola Sanni ( ). The legal Method.
Eze Malami (2006). The Nigeria Legal System.
Eze Malami (2004). The Nigeria Legal Method
The Constitutional of the Federal Republic of Nigeria (1999) (Amended)