Introduction
It will be stating the obvious if one restate the fact that Nigeria received laws from another jurisdiction. In essence the whole body of Nigerian law is traceable to many sources. Although, Nigeria is an independent democratic nation with sovereignty and federal constitution, the value of laws from other jurisdiction cannot be obliterated from her history. An attempt will be made here to discuss the issue of Nigeria’s reception of English law; the arguments, the appropriate terminology for the introduction or what should have been the more apt term and other relevant matters.
According to Park, A E W the three branches of English law received into Nigeria is the common law, equity and statutory law. There is in fact a fourth source of English law: custom, but all customs are purely local exception to the general law of the land and as such have no relevance to Nigeria. Any attempt to equate or compare English custom with Nigerian customary would be totally misleading and must be eschewed.
Generally, the main sources of Nigerian law are as follows:
1. Imported or Received English law: this include imperial law and received law (received law include common law, equity and statutes)
2. Nigerian legislations: which include enactments passed before and those passed after independence.
3. Nigerian case law: this can roughly be described as ‘Nigerian common law’.
4. Customary law: this is the local customs and includes indigenous and Islamic law (especially in the northern part where it has been adopted as the local custom)
The issue of Reception of Law
The reception of law from one territory to another is not new to Nigeria .In fact, there have been many other examples, of which perhaps the best known is the reception in the middle ages of Roman law upon the continent of Europe in the twelfth century, a number of far Eastern countries such as Japan, have adopted systems of European origin. It is true that the case of Nigeria is not exactly comparable, for the English law was imposed upon the country rather than freely chosen by its inhabitants, but it is generally agreed that this distinction does not make it inaccurate to use the term “reception” in relation to the introduction of English law into the territory.
Origin of Reception of English Law in Nigeria
Upon the creation of the colony of Lagos 1862, one of the first actions of the British authorities was to introduce into the territory (without specifying) the whole body of the English law (via ordinance No 3 of 1863).Even before that occurred, there were established for the colony a legislature and a system of courts of the English type it was the function of the former to enact laws for the colony and the latter to interpret and apply mainly those laws and the introduced English law
It must be noted that before the attainment of full independence by Nigeria on October 1, 1960, both the British Parliament and the crown were able to enact laws which by their own terms applied in Nigeria and so formed a part of Nigerian law. The power of parliament arose as consequence of its imperial sovereignty, that of the crown from the Foreign Jurisdiction Acts, 1890-1913(in relation to the protectorates), and the prerogative (in relation to the colony of Lagos) Acts of Parliament and orders in council passed pursuant to those powers constituted the highest source of Nigerian law; they prevailed over inconsistent rules derived from the other sources
Without mincing words, the introduction of English law into traditional societies marked the beginning of a new legal system or administration of justice. Whatever may be said of the present Nigeria legal system therefore, is in reality a mesh of foreign and indigenous legal concepts or the juxtaposition and enforced co-existence of the body of English law and native in a single legal order.
However, English law should, according to Park A E W ,be distinguished from those the English rules that apply in Nigeria because they have been received into the law of the country originally and adapt a metaphor used by Prof. Wheare ,in another context , ‘the former English law of their own force and motion crossed the sea to Nigeria .They did not need to be brought ;they came .The latter ,on the other hand, can come only if they are brought. They did not come under their own steam in a United Kingdom ship, but as passenger in a Nigerian ship’.
Reason for the Reception
The ideal situation according to Park, A. E. W , is for a state to have its own “homegrown” legal system. But the organic development of any such system is a slow and gradual process, and when a society chooses or is forced by circumstances to undergo a radical change, it is most unlikely that its domestic law will be able to adapt itself rapidly enough to fit the altered situation. One solution to this problem is for the society to take over and apply for its own purposes the legal system of another country which has already developed to the stage to which it is itself hurrying.
In the case of Nigeria, the decisive event which made it imperative for her to receive English law was the arrival in large number of Europeans and the consequent colonization of the country. Of utmost importance in this event is the introduction of large scale commercial activity which the existing traditional customary law could not cope with. This is because it unwritten and thus it application was unclear. It was also imperative that the colonizers introduce their own law not only because they were used to it but also to establish their hegemony. Lastly, there was the colonial conviction that English law is the fountain and cynosure of justice
Also, speaking on the reasons for the reception of Common Law into the Commonwealth with particular reference to the New Commonwealth countries (which included Nigeria), Nwogugu had said:
‘…each of the states was in the course of its colonial history administered by British officials. English law, therefore, became an obvious choice for reception as the officials had a preference for the legal system with which they were conversant’
Technique of reception of English law
The most recent reception of English law (by Nigerians themselves) is by sec. 45(1) of the Interpretation Act which states as follows:
“subject to the provisions of this section and except in so far as other provisions is made by any federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st of January, 1900, shall be in force in Lagos and in so far as they relate to any matter within the exclusive legislative legislative competence of the federal legislature, shall be in force elsewhere in the federation”
Similar provisions are present in the Eastern and Northern region laws. However, sub 2 of the same section limited the operation of subsection 1 to the extent of local jurisdiction and circumstances. It was this leeway that the western region legislature Parliament took in 1957 when it set up the law review commission headed Verity J. This committee recommended the reception of the common law, equity and modified relevant aspect of the statutes of general application .
Moreover, the reception and application of English law can be situated under the following headings:
1. Enactments receiving English law into the Nigerian territory in general terms. An example of these is the Sales of Goods Act 1893, which is still relevant in Nigeria till today (save the in western region of Nigeria). 2. Enactments receiving English law on specific or particular subject matter. These specific subjects relate to probate, divorce, matrimonial causes generally. 3. Imperial enactments which apply to Nigeria by force. This is as result of colonization and they include British acts of Parliament applying directly to Nigeria as a British colony (or to all the colonies of which Nigeria is a part) and orders- in- council.
The question of what is “statute of general application” has been answered by the West Africa Court of Appeal in the case of Young V. Abina , where it was held that even though the Land Transfer Act of 1897 was not in force in Scotland and Ireland ,it was in force in Nigeria .The court in a joint judgment ,observed that the Act applied to all estates of persons dying in England after Jan.1 ,1898 and commented thus :it is difficult to see how a statute could be of more general application…general application are used with reference to the matter of the statutes and not only geographically .Also, it seems to us that under sec. 14 ,England is the test of geographical generality”
However our major aim in this piece shall be whether English law was received into Nigeria and if they were, can the process actually be described as “reception” properly called. In our aim to wholly discuss this topic, we have eminent learned writers to rely on and we shall not shudder from taking the benefit of their templates.
The arguments
It was Park who initiated the controversy when he defined the term “reception” generally as “the introduction into one territory of the legal rules of another” .On whether there was actually a reception actually, he had said that:
“ It is true that English law was imposed upon the country rather than freely chosen by its inhabitant ,but it is generally agreed that this distinction does not make it inaccurate to use the term “reception” in relation to the introduction of English `law into the territory”
However, Jill Cottrell on his part was never in doubt that English law was received into the countries of the commonwealth (including Nigeria) when he said rather humorously that the word “received” has “often seem appropriate only as one will say he received a blow to the head” .Here, Cottrell was highlighting the fact that even though it is doubtless that English law was received into the countries of the Commonwealth, there was no consensus ad idem or agreement between the colonialists and the colonised as to the nature and extent of reception. We believe this position is very apt.
Professor T.B. Smith also contributed to this discourse. He premised his contribution on definition of the vital terms in the topic of his address .He commenced with the definition of “reception”. He said:
“First, what is meant by reception? In the Shorter Oxford Dictionary, meanings are attributed to verb “receive” all save one, the last example implying volition on the part of the receiver. However, the final sense given is “to have (a new...) imposed or land on one! Accordingly, I feel justified in construing “reception” in this paper to include both voluntary and imposed infusions of the “common law”
This general meaning to the term “receive” from which came reception is acceptable. However, if we want to stand by this definition by the Shorter Oxford Dictionary as rehashed by Professor T.B. Smith to the effect of the essentiality of volition, can we say there was volition on the part of the colonised on the reception of English in a country like Nigeria? The answer may not be in affirmative.
Learned Jurist, Niki Tobi also supported this view .According to him , English law was really imposed upon the country rather than of a free choice .The word “choice”, he opined gives an option to a person to select or pick from more than one in the exercise of his preference and priorities .The moment a person is exposed to only one thing without any other option, he cannot be said to have any choice in the matter.
However, it was Professor Allot who is most direct and clear on the issue .He described the term “reception” as inexact. He preferred the term “translocation”. To Allot, what was involved was the shifting of legal system or parts of it, often at different periods and by different legal mechanisms, to new locations.
Conclusion
We make bold to say (in the same vein as Niki Tobi ), that whatever term or expression is used is a matter of semantics. The important issue is that English law was introduced and has become part of our law. The terms or expressions, ”reception” “translocation” “transplantation” and the like ,will only be of little practical utilitarian value on the realities of the situation.
Our submission is that the description of the reception as received is appropriate but inexact .There is no crime in importing foreign law or body of rules per se. It is in this wise we recall that America imported from England and England from Rome and even Rome from Greece and Greece also from Babylonia .The only crime in copying, to our mind, is when the imitation is without a concomitant development of such to suit the local circumstances. Generally, when a legal system of a jurisdiction undergoes radical change, the way forward is for the society to take over and apply for its own purpose the legal system of another which has already developed to the stage is itself hurrying. It is in this wise that we commend the initiative of the western region in modifying some English statutes that were relevant to their local situation .
It is observed that a prominent feature of English law as a source of Nigerian law is that it contains such rules which have long been repealed or replaced in England but still in force in Nigeria .For instance, such repealed English laws are still applicable in states like Anambra ,Lagos, Rivers and others states, mostly in the Eastern and the Northern regions. It has even been observed that “one of the great regrets of English Lawyers, and this is an observation which seems to be almost equally applicable in Nigeria (except for the Western region, which has shown admirable initiative in this respect)is that Parliament does not devote more of its time to the important but not politically significant task of amending and improving the general law of the country” .
Nigeria attained independence status since 1960.the Time is ripe (as submitted by Fayokun A.O )to be truly indigenous. The starting point should be the abrogation of the so-called reception clauses in our statute books, and fashioning out a legal system which is truly Nigerian.
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