ACC307 Commercial Law Course Material Summary – NOUN Study Notes and Exam Practice Questions | Download ACC307 Summary
Module 1: Sources of Nigerian Law
Unit 1: Sources of Nigerian Law (Primary Source)
Learning Objectives
At the end of this unit, you should be able to:
- Define the term “source of law”.
- Identify the various sources of law.
- Distinguish between statutory source of law and judicial source of law.
Introduction: What is a Source of Law?
The term source of law is used in various senses. In the first sense, it means the ultimate origin of the whole body of a legal system — the origin from which the system derives its validity, whether from the electorate or voters, a special body, the general will, or the will of a dictator. In the second sense, the term is used to name the historical origin of a rule of law. For example, the common law is a historical source of English law because the origin of many rules of English law is traceable to the common law.
1. Primary Source of Law
The primary source of Nigerian law is Nigerian legislation and statutes. This consists of statutes and subsidiary legislation.
- Statutes are laws made by the legislator or a body duly constituted and authorised to enact laws.
- Subsidiary legislation (also known as delegated legislation or statutory instruments) is usually entrusted to Ministers or Commissioners.
The primary source of law consists of Ordinances, Acts, Laws, Decrees and Edicts, depending on the status of the issuing authority or the prevailing political situation.
Ordinances were laws passed by the legislative body during the colonial era. In most cases, such enactments were usually in the form of orders from the mother-country’s parliament and were deemed applicable to the colonies concerned.
2. Statutory Materials
Statutory materials as sources of law include statutes such as:
- Sale of Goods Act 1893
- Infants Relief Act 1874
- Partnership Act 1890
- Fatal Accidents Act 1846
- Wills Act 1873
- Statute of Frauds 1877
- Criminal Code Cap 77
- The Nigerian Constitution 1999 (as amended)
3. Judicial Material
Judicial precedent (or case law) consists of laws found in judicial decisions. A judicial precedent is the principle of law on which a judicial decision is based — it is the ratio decidendi or the reason for the decision.
Other judicial material includes the Nigerian Law Reports, which are reports of cases, wherever published or edited, decided by Nigerian courts. They include English law reports containing decisions of the Judicial Committee of the Privy Council given on appeal from Nigeria, a number of local and foreign periodicals containing case reports, and various reports including loose-sheet (unbound) series.
4. Reasons for Studying the Sources of Law
- It affords an understanding of the various means by which the law governing society is made or comes into existence, e.g. through formal legislative processes in parliament or through judicial precedents.
- It affords the means by which authoritative written materials are derived — the literary source represented by statute books, compilations of annual laws, statutes in force, textbooks and monographs.
- The study of sources facilitates an understanding of the process by which law derives its validity — the formal sources reflected in the constitution and the activities of enacting bodies like the National Assembly.
- A mastery of the sources of law enhances an understanding of the historical factors that have influenced the evolution of the law. Examples include: (i) the difficulty of divesting customary law and Islamic law from the culture, religion and traditions of the people; (ii) Nigeria’s evolution from a unitary to a federal state under colonial domination; (iii) the great impact of English law on the Nigerian legal system; (iv) the multi-ethnic structure and political heterogeneity resulting in the plurality of laws; and (v) the resultant proliferation of courts to cater for the various dimensions of the polity.
Important Definitions
Source of law: The origin from which a legal system derives its validity, or the historical origin of a rule of law.
Statutes: Laws made by the legislator or a body duly constituted and authorised to enact laws.
Subsidiary (delegated) legislation: Legislation entrusted to Ministers or Commissioners, also known as statutory instruments.
Ordinances: Laws passed by the legislative body during the colonial era, usually in the form of orders from the mother-country’s parliament.
Judicial precedent: The principle of law on which a judicial decision is based; the ratio decidendi or reason for the decision.
Examination Practice Questions
Question 1
Question: Define the term “source of law” and explain the two senses in which the term is used.
Correct Answer
The term “source of law” is used in various senses. In the first place, it means the ultimate origin of the whole body of a legal system — the origin from which the system derives its validity: from the electorate or voters, a special body, the general will or the will of a dictator. Secondly, the term is used to name the historical origin of a rule of law. For instance, the common law is a historical source of English law, for the origin of many rules of English law is traceable to the common law.
Key Points Expected
- Definition of source of law as ultimate origin/validity of the legal system.
- Definition of source of law as historical origin of a rule of law.
- Example: common law as a historical source of English law.
Question 2
Question: Discuss legislation and statutes as the primary source of Nigerian law.
Correct Answer
The primary source of law is the Nigerian legislation and statutes. This consists of other statutes and subsidiary legislations. Statutes are laws made by the legislator or a body so duly constituted and authorized to enact laws, while subsidiary legislations, also known as delegated legislations or statutory instruments, are usually entrusted to Ministers or Commissioners. The primary source of law consists of Ordinances, Acts, Laws, Decrees and Edicts, depending on the status of the issuing authority or the circumstances of the prevailing political situation. Ordinances were laws passed by the legislative body during the colonial era. In most cases, such enactments were usually in the form of orders from the mother-country’s parliament and were deemed to be applicable to the colonies concerned.
Key Points Expected
- Primary source = Nigerian legislation and statutes.
- Statutes made by the legislator; subsidiary legislation made by Ministers/Commissioners.
- Forms: Ordinances, Acts, Laws, Decrees and Edicts.
- Meaning and origin of Ordinances.
Question 3
Question: Distinguish between the statutory source of law and the judicial source of law.
Correct Answer
The statutory source of law consists of legislation — statutes made by the legislator or a body duly constituted and authorised to enact laws, together with subsidiary legislation. Examples include the Sale of Goods Act 1893, the Criminal Code Cap 77 and the Nigerian Constitution 1999 (as amended). The judicial source of law, on the other hand, consists of judicial precedent or case law — laws found in judicial decisions. A judicial precedent is the principle of law on which a judicial decision is based; it is the ratio decidendi or the reason for the decision. Judicial material also includes the Nigerian Law Reports and other reports of cases decided by Nigerian courts.
Key Points Expected
- Statutory source: legislation, statutes and subsidiary legislation made by law-making bodies.
- Judicial source: judicial precedent/case law from judicial decisions.
- Ratio decidendi as the principle of law in a decision.
- Nigerian Law Reports as judicial material.
Question 4
Question: Discuss in detail why it is important or necessary to study the sources of law of a given society.
Correct Answer
The reasons for studying the sources of law include the following: (1) It affords an understanding of the various means by which the law governing the society is made or through which it comes into existence, e.g. through formal legislative processes in parliament or through judicial precedents. (2) It affords the means by which authoritative written materials are derived. This constitutes the literary source, such as statute books, compilations of annual laws, statutes in force, textbooks and monographs, with which a lawyer should be thoroughly familiar. (3) The study facilitates an understanding of the process by which law derives its validity — the formal sources reflected in the constitution and the activities of enacting bodies like the National Assembly. (4) A mastery of the sources of law enhances an understanding of the historical factors that have influenced the evolution of the laws. For instance, it is historically difficult to divest customary law and Islamic law from the culture, religion and traditions of the people; Nigeria evolved from a unitary to a federal state under colonial domination; English law has had a great impact on the Nigerian legal system; the multi-ethnic structure and political heterogeneity resulted in a plurality of laws and a complex legal system; and there has been a resultant proliferation of courts to cater for the various dimensions of the polity.
Key Points Expected
- Understanding how law is made (legislative process and judicial precedent).
- Derivation of authoritative written/literary sources.
- Understanding the formal sources and process of validity.
- Historical factors influencing the evolution of law (customary/Islamic law, federalism, English law influence, plurality of laws, proliferation of courts).
Unit Revision Points
- Source of law = ultimate origin of validity of the legal system OR historical origin of a rule of law.
- Primary source of Nigerian law = Nigerian legislation and statutes (Ordinances, Acts, Laws, Decrees, Edicts).
- Statutes are made by the legislature; subsidiary legislation by Ministers/Commissioners.
- Judicial material = judicial precedent/case law; the principle of law is the ratio decidendi.
- Nigerian Law Reports are reports of cases decided by Nigerian courts.
- Other judicial materials include Privy Council decisions on appeal from Nigeria and foreign/local periodicals.
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