LEGAL METHOD

Definition of Legal Method

Legal method is an introductory course for new students in law to get them indoctrinated into legal studies. It helps students to lay a foundation for proper understanding and application of the various substantive rules and principles which they will come across as they progress in their legal education.

The phrase ‘’legal method’’ contains two words – ‘’Legal’’ and ’’method’’. The word ‘’legal’’ means something relating to law while the word ‘’method’’ means a way or procedure of doing something in an organised and planned manner. Thus, legal method is defined as the way and manner of doing things relating to law in the society.

  1. Malemi in his book Nigerian Legal Method defines it as the study of law, and various methods, approaches, processes and procedures that can effectively and beneficially be used to meet the needs of the individual and the state.

 

The Aims and Objectives of Legal Method

  1. To enable the student have a proper understanding of the nature, functions, breadth and diversity of the law.
  2. To lay a foundation upon which other law subjects will be built
  3. To enhance students understanding of the reason for law in the society.
  4. To enhance students ability to construct arguments about the facts of a given case and why a particular authority should be applied or not.
  5. To deepen student’s knowledge, understanding and application of some of the legal rules
  6. To enhance student’s knowledge and appreciate various methods or techniques in which law is involved.

 

The meaning of Law

Law has been defined by A.O Sanni as:

        ‘’a set of rules made by individuals, body or persons vested with the power to make    such rules which are binding and enforced on members of a given society or state.’’

    Although there has been different definition of law by various scholars, there is no universally accepted definition of law.

According to MCcourby and White, ‘’law has no simple answer.’’

Okunniga has stated that:

         ‘’Nobody including the lawyer has offered, Nobody including the law is offering and  Nobody including the lawyer will ever be able to offer a definition of law to end all definition.’’

 

Features of law

The following are features of law that are relevant to law students.

  1. Law is a body of rules: it cannot be contained in one document which is why we have lawyers. Law in a technical sense is a body of rules regulating society and it is contained in documents such as the constitution, statutes, case laws etc. All these together make up the corpus juris of Nigerian law.
  2. Law is Man Made: the law is usually made by the legislature or delegated legislator or law maker according to the system of government that is in place in a given country. For example, S4 of the 1999 Constitution provides that the law making powers of the legislature should be vested in the national assembly which comprises of the Senate and the House of Representatives.
  3. Law is normative in character: law prescribes the dos and don’ts of the society. It consists of norms for the regulation of human conduct in a society.319 of the Criminal Code prescribes that the death penalty for murder.
  4. Law is dynamic in nature: this means that law is not static. It changes and gets better with time in order to meet the changing needs of the society in which it operates. For example, Nigeria has had so many constitutions starting from the Clifford Constitution of 1922 to the present 1999 constitution.
  5. Law has an element of coercion: the breach of law attracts sanction which are enforced by organized institutions like the police, courts, prison, tribunals etc. if there is no means for enforcing the law, it becomes a mere moral advice.
  6. Law has territorial limitation: laws are usually made to regulate the conduct of people in a given society. Thus, the provisions of the 1999 Nigerian Constitution cannot apply in another country. The international law principle holds that ‘’no country should ever take notice of the revenue laws of another country.’’

    In the case of Holman V Johnson, the plaintiff sold tea to the defendant in Dunkirk, with the full knowledge that the tea was to be smuggled into England. Subsequently, the buyer refused to pay on the basis that the sale of the tea was illegal. The court rejected the argument on the basis that it would mean that the laws of England are also available in Dunkirk.

 

 

Functions of Law in the Society

  1. It serves as a means for resolving disputes and administers justice through court systems.
  2. It serves as an instrument for creating order and regulating societal behaviour’
  3. It defines and regulates the kinds of relationship among individual members of the society.
  4. It creates law enforcement agencies, institutions, administrative justice system, correctional institutions and facilities
  5. It can be used to restructure any sector of the society
  6. It grants justice and remedies to those who have been wronged.

In order to fully understand the meaning of law, one must delve into jurisprudence which is known as the theory of law. The various beliefs of scholars is regarded as theories of law. Legal theories are often implicit and not explicit. The few most popular of these theories will be discussed below.

  1. The Natural Law theory
  2. The Positivist law theory
  3. The pure law theory
  4. Historical law theory
  5. Sociological law theory
  6. Utilitarian law theory

 

  1. Natural law theory:

    This is the first school of law and the chief protagonists of this theory include Plato, Zeno, Thomas Aquinas, Socrates, Grotius etc. Natural law simply means what is just and right. Naturalist believe that there are certain rules inherent in man telling him what is right and just and motivating him to do good and avoid evil. It is perceived by man through reason and comprises of those laws which man in his wisdom will readily agree to be just and necessary for society.

This school associates law with morality for it believes that Man Made law must abide by basic moral principles in order for it to be valid.

Natural law is universal i.e it applies everywhere. For example, murder is frowned upon all over the world. One of the basic ideas of law is that just laws bind in conscience while unjust laws do not.

 

Merits of Natural Law

  1. It has helped in fueling liberation revolutions in the past. It was invoked by Americans in their war for independence from Britain, it was invoked by the French during their revolution, same with Africans. It is being used by the Niger Delta people who have been asking for a more equitable share in revenue allocation from the government.
  2. It has helped in the abolition of slave trade, abolition of killing of twins, emancipation struggle and it is now being used to justify homosexuality.
  3. It has been used to form the basis of Fundamental Human Rights or Natural Rights in our Constitution.
  4. It has been used to develop the concept of justice, human rights and democracy worldwide.

 

Demerits of Natural Law

  1. It is merely a moral rule which cannot be penalised unless it is promulgated into positive or human law. For example, S387 and S388 of the penal code which operates in the North criminalise Adultery while the criminal code which applies in south does not.
  2. Natural law considers right reasoning as a guide for discerning right and wrong. However, right reasoning is a subjective concept given that it cannot be subjected to empirical scrutiny and interpretation.
  • Natural law suffers from multiple conscience issue given that different individual from different backgrounds have different conceptions of what is right, just or fair. This issue is what has made natural law to be called a harlot. It would cause lawlessness if everyone in the society is permitted to act according to what he/she thinks is right or wrong. This is why only written laws that have been rigorously debated and objectively determined are enforceable by the appropriate bodies in the society.

 

  1. Positive Law Theory

The word ‘’positive law’’ is gotten from the word ‘’posit’’ which means ‘’to put’’ or ‘’to place.’’. Positive law is therefore the law put in place or imposed upon us by our rulers.

This theory of law was spearheaded by John Austin (1790-1859). He propounded the command theory of law in his book ‘’The Province of Jurisprudence Determined’’ in 1832 where he defined law as:

’a command set by a superior being to an inferior being to an inferior being

           And enforced by sanction.’’

The features of the definition include:

  1. The existence of a definite sovereign
  2. Sovereign with no legal limitation in the exercise of his power i.e Uncommanded Commander.
  • Subjects are in the habit of obeying him because of his coercive power to impose sanction.

 

Thus, positive law is any law made by the sovereign or persons legally empowered to make such laws which have a binding effect on the people in general.

Other philosophers of positive theory include H.L.A Hart, Prof Hans Kelson, Jeremy Bentham. According to H.L.A Hart, there is no necessary connection between law and morals.

 

Merits of Positive Law Theory

  1. There is need for final authority which is the soverign who resolves disputes with finality.
  2. It helps to maintain law and order as the breach of law would lead to effective sanction.

Demerits of Positive Law Theory

  1. Not all laws are couched as commands for example: the provisions of chapter 2 of the 1999 constitution which deals with fundamental and directive principles of state policy are not binding on the government. Laws relating to wills do not mandate anyone to make a will. A person is not mandated to marry and can choose to marry under the Marriage Act or customary law.
  2. Austin believes that positive law is only concerned with the fact that the sovereign makes law, it does not concern itself with whether the law is not moral and not acceptable to the society.
  • The doctrine of un-commanded commander is only possible in dictatorial regimes where the society is not governed by the rule of law but by the whims and caprices of the dictator. The military is not above the law for they are also bound by the provision of the law that they enact. For example, in Lakanmi V A.G (Western State) and Others (1971), The supreme Court declared the forfeiture of assets null and void. Also in Ojukwu V Governor of Lagos State, the action of the military governor in evicting the defendant off his property was declared null and void by the court.
  1. Austin wrongly assumed that all human beings obey laws because of fear of sanction attached to it. This is not true because some people obey laws because it’s in their nature. For example, some people abstain from killing a fellow human being because it is repulsive and it is against their principle.

 

 

  1. Pure Theory of Law

It was propounded by Hans Kelson and it disputes the command theory. kelson opines that law is a norm and for law to be valid, it must be created by a norm whcich itself has been created by a higher norm within the legal order. A norm traces their validity to a higher norm until it gets to the grundnorm which is the final authority within the legal order. It tells us what to do and what not to do.

For example, in PDP V I.N.E.C (2001), 1 W.R.N. 1, The Supreme Court described the constitution as the grundnorm of the people.

 

Merits of Pure theory of law

  1. This theory of law has been criticised because it only emphasises the formal validity of law and it is not concerned with the morality or immorality of the law. It is the right tool for dictators.
  2. The argument that the constitution is the grundnorm remains largely controversial because it is not easy to trace the grundnorm in a given society. For exam,ple, in Nigeria, we are not sure whether the constitution gets its power from the people or the military government.

 

 

  1. Historical theory of law

Fredrich Von Savigny, A German Aristocrat, propounded this theory in order to counter the natural law theory that influenced the overthrowing of monarchs in the 17th and 18th century Europe.

This theory believes that customary law is the primary source of law. It believes that proper law must be in accordance with the custom of the people. This custom is referred to as the ‘’Volgeist’’ which is the spirit of the people and what binds them together. Von Savigny favours the evolution of law over the natural law theory, this is because he was an aristocrat and was interested in maintaining the status quo.

 

Merits of the theory

  1. It originates from the belief that that rules of customary laws are rational or fair.

 

Demerits of the theory

  1. It is not all customary laws that are fair and just. Some of these laws are the reason for servitude, prejudice, inheritance issues, discrimination etc.
  2. It has been criticized that this theory is backward and not fit for modern times.

 

 

  1. Sociological law theory

Eugene Ehrlich and Roscoe Pound are the leading exponents of this theory of law. Eugene Erlich is of the belief that societal value nad conduct determines the meaning of law i.e the way the society acts determines the kind of law that would be laid down. Where the society does not recognise a law, it fails as a means of social control.

However, Roscoe pound is of the belief that in satisfying human wants, balancing is necessary among the competing claims in such a way to avoid disruptions in established institutions.

 

Demerits

  1. It is not all times that conduct influences the law because there are some situations where law influences conduct for example: car owners register their vehicles because the law mandate them to do so.
  2. It is risky to allow a guilty person to go free just because every other person is disobeying the law.
  3. Pound’s theory of balancing competing claims failed to provide the scientific approach in assessing this.

 

  1. The Utilitarian Theory of Law

It was propounded by Jeremy Bentham (1748-1832). It maintains that the purpose of law is to promote communal utility that would positively affect the larger aspect of society. Utility here means happiness. The greater number of good should be the basis of making appropriate laws in thr society.  He identifies four basic utilities: security, equality, liberty and abundance. The most important goal is security. For example: the law allows the police to invade the privacy of a suspected armed robber, robbing him of his liberty, in order to guarantee the security of the society.

 

Demerits      

  1. The major criticism of this theory is that it doesn’t specify a specific method for balancing the interest of the individual and community.

    The objectives of law are the main purpose behind the establishment of law in the society and they are as follows;

  1. Law, Order and Justice
  2. Law and Freedom
  3. Law and the State
  4. Law and Legitimacy
  5. Law and Sovereignty.

 

  1. Law and Order:

    The main purpose of law is the maintenance of order. It is the duty of the government to maintain order through the establishment of law enforcement agencies like the police, court, prisons, NDLEA etc. the opposite of law and order is anarchy and chaos. Examples of laws made to maintain order are Advance Fee Fraud, Money Laundering Act etc.

 

  1. Law and Justice:

In ordinary parlance, law and justice are related. justice means to be fair, right, just or good. Thomas Aquinas defined justice as a firm and constant will top give each person his due.

The purpose of law is to do justice. This means that law is not an end to itself but a means towards the attainment of justice. There are two theories of justice namely:

  1. Formal Justice: it is the strict application of law by a judge without any fear or favour. It ensures fairness and impartiality because it prevents the judge from using wide discretionary powers and makes the law certain and clear.
  2. Substantive Justice: it is applied when strict application of law will lead to hardship or injustice. The judge is given wide discretionary powers and can temper justice with mercy.

 

  1. Law and Freedom:

    Law controls and protects the freedom of man in the society in order to prevent anarchy and chaos. In a democratic state, Freedom is not always absolute because limitations are put in place to ensure that freedom can be attained by striking a balance between competing interests. For example, freedom of speech must be balanced with another person’s right to prevent defamation of character.

 

 

  1. Law and the state:

    A state is a political entity created by law and under the administration of the government. It is conferred with certain rights and duties under law. The law defines and regulates the powers of the three organs of government namely: the legislature, the executive and the judiciary.

 

 

  1. Law and Legitimacy:

Legitimacy means lawfulness. It is the right to dictate appropriate behaviour and are entitled to be obeyed because the leaders have been given the mandate to rule by the people.

 

 

  1. Law and Sovereignty:

    Sovereignty is the authority of those entitled by law to exercise it. For instance, laws enacted by the legislature on behalf of the people.

According to the Nigerian constitution of 1999 (as amended) sovereignty belongs to the people of Nigeria from whom the government derives all its powers and authority. This means that the people have the power to choose or change theie government through peaceful or violent means.

There are different aspects or types of law and they are as follows:

  1. Eternal law
  2. Divine law
  3. Natural law
  4. Positive law or Human law.

 

  1. Eternal Law:

The word ‘’Eternal’’ is derived from eternity which means something that would last forever. It is said to be the foundation of all laws. It is the law put in place by God in the universe and has been applied since the beginning of time and would continue to exist till the end of time. It is constant, everlasting and universal. An example of eternal law is the law of gravity which entails that what goes up must come down.

 

  1. Divine Law:

    These are laws of God or Laws made by God to govern human affairs. It is premised on the fact that man is sinful in nature and cannot make laws but must look to God who is all knowing and wise to make perfect laws for the universe. Examples of divine laws are the ten commandments in the bible, the Islamic law in the Quran etc.

 

  1. Natural Law:

    It is also known as the law of nature. Lord Lloyd described natural law

        ‘’as a body of objective, moral principles based on the nature of the universe

           and discoverable by reason.’’

Thus, natural law means a set of rules that are innate in all mankind and can be deduced through the use of reason which guides human behaviour or conduct. It is a set of principles that serve as a guide which positive law must follow in order to be valid. If positive law is at variance with natural law, it could lead to injustice in the society.            

It is a part of divine law and examples of natural law are law of gravity, law of punishment, youth, old age etc. it is accepted in all cultures that murder is wrong and should be punished.

 

  1. Positive or Human Law:

    These are laws that are laid down or posited by person authorized to make such laws in order to guide the conduct of members of the society. The school of law on positive law is legal positivism which does not concern itself with morals.\

According to H.L.A Hart, a Positivist,

‘’Law is a command and there is no necessary connection between law and

          morals or law as it is (lex lata) and law as it ought to be (de lege ferenda)’’

Examples of leading scholars of legal positivism are Jeremy Bentham,John Austin, Joseph Raz and so.on. Examples of positive laws are constitution,  criminal code, companies and allied matters act etc. The strict application of the doctrine has been criticized that it could lead to dictatorship, anarchy, tyranny and despotism.

Law can be classified into different categories but they still overlap because of shared features. For instance, where a person is terminated from work due to an injury he sustained in his place of work which rendered him unable to work, the solicitor would have to combine law of contract or labour law and the law of torts to build a claim against the employer.

The classification of law helps us to know and understand the features of law and the relationship between the different categories of law.

The following are the major classification of law:

  1. Public and private law
  2. Civil and criminal law
  3. Substantive and procedural law
  4. Municipal and international law
  5. Written and unwritten law
  6. Common law and equity.

 

  1. Public and Private Law:

Public law deals with the protection of the state and its citizens. It governs the relationship between the state and its citizens. It is concerned with the preservation of good order in the society. Examples of public law include constitutional law, administrative law, international law, criminal law etc.

Private Law governs the relationship between private individuals. It deals with the protection of individual rights and duties. Examples of private law include law of contract, torts, trust, family law, succession etc.

 

 

 

  1. Civil and Criminal Law

In Knuller V Director of Public Prosecution, Lord Diplock stated that:

        ‘’Civil liability is concerned with the relationship of one citizen to another;

          criminal liability is concerned with the relationship of citizens to society

          as a state.’’

Civil Law is the category of law that defines the rights and duties of individuals to one another and provides a system whereby an individual who is injured by the wrongful act of another can be compensated for damages he suffered. Examples of civil law include, law of contract, law of torts, land law, family law etc.

Criminal law is the category of law that protects the interest of the state and its organs by regulating crime in the society. It punishes acts which are deemed harmful to the society. The punishment to be imposed may be in form of imprisonment of payment of fine or both to the offender. Serious crimes like murder, armed robbery are treated in the high court while lesser offences like traffic violation are treated in the magistrate court. An example of criminal law is contained in the Criminal Code Act which is applicable in the southern part of Nigeria and The Penal Code which is applicable in the northern part of Nigeria.

To be successful in a criminal trial, the prosecution has to prove his case beyond reasonable doubt; Section 135 Evidence Act 2011. The burden of proof does not shift from the prosecutor because the law seeks to protect the accused person from the higher power of the state and to avoid the danger of being wrongfully convicted.

    While in a criminal trial, the plaintiff would have to prove its case on the balance of probabilities; Section 134 Evidence Act 2011. The burden of proof shifts between the parties in establishing their case and judgement is in favour of the party who established his case more successfully.

However, criminal law and civil law overlap in functions. For instance, stealing is both a criminal offence and a tort of conversion. Assault, false imprisonment and defamation are both torts and crimes.

 

 

 

  1. Substantive and Procedural Law:

    Substantive law is a body of legal rules. It defines a code of conduct and prescribes a penalty for the violation of that code. It deals with all laws except for procedural laws. It includes the constitutional law, criminal law, law of contract, tort etc.

Procedural or adjectival law governs the application of substantive law. It stipulates how a right or duty prescribed in a substantive law should be enforced. Examples include: The Evidence Act 2011, The Administration Of Criminal Justice Act etc.

 

 

  1. Municipal and International Law:

    Municipal laws are the laws that govern the relationship between individuals and the relationship between individuals and the state. They are laws that deal with internal affairs of a state. Examples of municipal laws are the Nigerian Constitution, land law, taxes, education law, civil rights law etc.

International laws are laws that regulate the relationship between states and international organisations. It also regulates the relationship between different independent countries. Examples of international laws are treaties, international customs, general principles of law recognized by civilized nations etc.

By virtue of Section 12 of the 1999 constitution (as amended), international treaties cannot have the force of law except they are enacted by the Nigerian National Assembly.

                                                                                                                        

 

  1. Written and Unwritten Law:

     Written laws are laws that have been formally enacted into statute by the legislature. Such laws are debated and scrutinized through various stages before they are signed into law by the executive. They are usually found in more than one document and are called different names in different jurisdictions like code, edicts, decrees, statutes etc. examples of written law are the Nigerian Constitution of 1999 and the Universal Declaration of Human Rights, 1948.

Unwritten Laws are laws that are not enacted by the legislature such as case laws and can also be referred to as those laws which are not documented such as customary laws and conventional laws. Examples of unwritten laws are the British constitution, Received English Laws and Customary laws under our Nigeria Legal System.

 

   

 

  1. Common Law and Equity:

   In legal sense, common laws are those laws that were developed from the common law court system of the King’s Bench, the Court of Common Pleas and the Court of Exchequer. Common law came into existence after the Norman Conquest of 1066AD.

The Norman king appointed members of his court to settle disputes on his behalf. These royal judges travelled throughout the country to settle disputes and would come together at Westminister to compare the different customary laws they encountered. They discarded the insensible ones and retained the logical ones. These laws then metamorphposed into common law.

Common law are judges past decided cases which are applied to present case. Common law was strict formal and full of legalism for example, if a plaintiff does not issue a writ or does not have an appropriate writ for his cause of action, he has no remedy. The only remedy in common law was damages.

Due to the harshness of common law, plaintiffs submitted  several petitions to the king to use his prerogative of mercy for judgement. The king appointed the Lord Chancellor to deal with most of the petitions and he applied the principle of fairness and natural law in making his decisions. Thus, equity means fairness, just or natural justice, morally right or good.

As the court of chancery became more prominent, conflict arose between gthe common law courts and the court of chancery which came to a head in the Earl of Oxford case where it was held that whenever there was a clash between common law and equity, equity should prevail.

This ruling did not solve the problem because the two courts were existing separately and offered different remedies. The problem was however solved by the merging of the two courts by virtue of The Judicature Act Of 1873 and 1875. Althgough, they applied in the same court, their rules are different and it is inherent in the saying:

‘’although two streams now flow into one, their waters do not mix.’’

Section 34 – 44 0f The Judicature Act provided that if there be any conflict between the rule of common law and equity, the doctrine of equity would prevail.

         It is a well- known fact that law is an instrument of social control. The techniques or methods it adopts in controlling societal behaviour will be discussed below.

  1. The Penal Technique:

It is based on the use of criminal law. Penal technique discourages deviant behaviour by prohibiting some conducts and providing punishment for engaging in those conducts. The state plays an important role in penal technique for it puts in place institutions and machinery for the detection, maintenance, and enforcement of the law. The institutions include the police force, the judiciary, prisons and other law enforcement agencies.

The Criminal Code, Penal Code and The Economic and Financial Commission Act etc are just some of the laws in relation to penal technique. Section 315 of the criminal code spells out that murder and manslaughter are offences. Section 319 of the criminal code provides that the punishment for murder is death while, Section 325 of the criminal code provides that the punishment for manslaughter is life imprisonment.

Penal Technique brings about social control when a person who committed a crime is reported to the police and an arrest is made and the police investigate the matter and then the eventual arraignment before the court based on available evidence gathered. The person will be given the opportunity to defend himself and if found guilty, the punishment will be decided based on the gravity of the offence.

Penal technique may look good in theory but in practice it is doubtful whether it has been able to achieve its main aim of reducing deviant behaviour because crimes keep on increasing day by day. Due to this, the states should employ other alternatives to curb deviant social behaviours which will be discussed below:

Under penal Technique, the main areas of law are the substantive and procedural aspects of law.

  1. Non-Intervention: it is not possible to penalise every immoral conduct that is frowned upon by the society. Thus, it is left to the legislature to decide which action the society wishes to discourage with effective sanction. For instance, in the case of Aoko V Fagbemi, where the court while trying a case in southern Nigeria, held that adultery was not a criminal offence on the ground that it was not prescribed as such by a written law. It should be noted that adultery is only a crime in the North by virtue of S387 of the Criminal Code.
  2. Warning or Caution: there are some cases where it is more expedient to caution or warn the offender and not punish him. This is particularly seen among child offenders, first offenders or petty crimes. A judge may warn or caution a noise maker in the courtroom rather than committing the person for the offence of contempt of court.
  • Reciprocity or Self-Help: it is based on the mosaic law of ‘’an eye for an eye and a tooth for a tooth.’’ Farrah and Dugdale described it as a symptom of underdeveloped system. This resort to vengeance is very dangerous and unfit for modern time as it could lead to the total breakdown of law and order. It is also known as jungle justice which could lead to the death of an innocent person without being subjected to fair hearing.
  1. Compounding or Compromise: this occurs when a victim or an aggrieved party reaches an agreement with the offender not to press charges against him on the fulfilment of certain conditions by the offender. For instance, where the family of the victim of a minor accident decide not to sue the driver because the driver has promised to compensate them.

 

 

  1. Grievance Remedial Technique:

    Unlike Penal Technique, Grievance Remedial Technique only deals with civil matters. It was defined by Professor Summers as a technique which

’defines remediable grievances, specific remedies…and provides for

           enforcement of remedial awards.’’

This technique simply provides for instances in which a person would be held to have breached another’s right, it provides compensations and also accounts for means for enforcing such compensations.

The government uses this method to regulate society by enacting civil laws that attract civil sanctions and also provides remedies for wrong parties through the civil justice system. Some of the remedies under this technique include: damages, injunction, specific performance, restitutio in integrum etc.

Substantive laws  of this technique dealing with rights and obligations include contract law, torts, commercial law, labour law etc. the procedural aspects of this technique include civil procedure, civil remedies, legal advice etc.

The essence of this technique is that the victim is likely to be pacified if the adequate remedy is granted to him/her and this would prevent the victim from taking the law into his/her hand. The following are alternatives to the Grievance Remedial Technique:

 

  1. Penal Technique: it is regarded as an alternative to Grievance Remedial Technique because there are some conducts which may both a crime or a civil wrong. Examples include: assault, battery, false imprisonment, defamation etc. the consequence of this is that the wrong doer may risk being prosecuted for the criminal aspect (imprisonment) and at the same time be sued for civil liability (pay damages). The common law rule in the case of Smith V Selwyn (1914) states that if a wrongful act is a felony, no action in tort can be brought before the court except a criminal case has been concluded or a substantial reason is brought for his non-prosecution. However, this is not applicable in Britain anymore and it was not applied in the Nigerian case of Nwankwa V Ajaegbu(1978.)

 

  1. Private Settlement: this may be private arrangement where the parties at the time of making the contract, spelt out means by which the aggrieved person should be compensated. It saves parties the time and money for litigation if implemented.

 

  • Insurance: the parties might decide to deal with the matter solely in terms of insurance cover especially in motor vehicle issues. This is relevant especially in developed countries.

 

  1. Arbitration: where there is an arbitration clause in a contract, it will be premature for a party to go to court without first submitting the dispute to arbitration. The court can only intervene in a narrow confine where the award is challenged. See Arbitration and Conciliation Act 2004. It is a more effective and less time consuming alternative.

 

 

  1. Private Arranging Technique:

    Through this technique, the law leaves the individual with the option to arrange his private life and affairs the way he likes as long as it is within the confines of the law. The technique does not bind every member of the society by its rules. It only binds those who wishes to be bound. For instance, a person is not obligated to marry but when such a person decides to, he must do so within the legal framework. Thus, a person has a right to marry under the marriage act, customary law or Islamic law. If he chooses to marry under the Marriage Act, he has to abide by its provisions. Similarly, there is freedom of choice in making a will and if he decides to make a will, he must comply with the stipulated law relating to the will for it to be valid.

Before the enactment of the Hire Purchase Act of 1965, an hirer can put an end to hire and seize his land back if he has not been paid fully even if 90-95 percent of the instalments has been paid as applied in the cases of Atere V AMao(1957) and Sanyaaolu V Benthworth Finance (1972). However, it is no longer applicable by virtue of S9 of the Hire Purchase Act which provides that an hirer cannot recover his property except by a court action if the hirer has paid 3/5 of the hire purchase price.

  1. Constitutive Technique:

    This technique seems to be closely related to private arranging method. It deals with the formation of legal personalities which is its main feature. It encompasses all laws that deal with the registration of companies and organisations. S37 of the Companies and Allied Matters Act states that when a company is incorporated, it becomes a legal personality.

The principle of legal personality was established in the case of Salomon V Salomon (1897) AC 22 where Salomon who was a sole proprietor for many years incorporated Salomon and Co Ltd and sold his leather making business to this company. The only shareholders were him and his family members, he borrowed the company some money. Subsequently, the company went into financial crises and it was to be determined whether Salomon, the secured creditor should be paid first or the outside creditors. The solicitors of the outside creditors argued that Salomon and Co Ltd was a sham and was the same as Salomon. Salomon lost at the trial court and the court of appeal but won at the House of Lords where it was held that Salomon and the company were different personalities thus Salomon should be paid first.

The concept of legal personality as enunciated in Salomon V Salomon case does not entail that a business man can defraud the members of the public by creating a company. The principle of legal personality makes it possible to have large multi -national companies.

 

  1. Administrative Regulatory Technique:

    This method of social control is one in which the government in order to protect its citizens regulates the activities of private businesses to avoid citizen exploitation. The steps taken by the government include: licensing, inspection, warning letters, suspension, litigation or criminal prosecution as a last resort etc. the government has also established some regulatory bodies like  Joint Admissions and Regulation Board,    

Securities and Exchange Commission, Nigerian Agency for food and Drug Administration and control (NAFDAC), the Nigerian Communications Commission (NCC), and so.on. for example, the manufacturer of consumable goods has to obtain approval from NAFDAC after it has met certain standards.

This technique is different from penal method because it regulates behaviours while the latter prohibits and sanctions anti-social behaviours.. it is also different from grievance remedial technique because it prevents  and its enforcement is by the government. While, the latter ensures compensation if there is a breach and it is enforced on the initiative of the aggrieved.

 

  1. Fiscal Technique:

The technique has been used by government in modern time to control the behaviours of its citizens. This technique means the use of law to impose a variety of taxes and levies which are enforced by government agencies like Federal Board of Inland Revenue (FBIR) and State Board of Internal Revenue(SBIR), income tax board and custom service. The government adopted this technique in order to raise money for governance.

For goods that the government wants to discourage, it imposes higher tax rates on them. Some taxes are used to redistribute income and bridge the widening social gap between ‘the haves’ and the ’haves nots’ in the country. Example of some of these taxes are PAYE (pay as you earn), personal income tax and company tax. For example, in 1998, in order to reduce the rate of gas flaring the fine for gas flaring was increased by 1900 percent.

 

  1. Conferral of Social Benefit:

It is established all over the world that it is the duty of the government to provide basic amenities, infrastructures and social security programmes for its citizens. It does this by establishing schools, hospitals, building roads and so.on.this technique does not regulate conduct but is concerned with improving the welfare of the people. The government achieve this goal through some of the money gotten from the fiscal method. For example, S1 of the University Of Ilorin Act, it provides the basis on which the administration of the university is operated.

It is clear from the foregoing that some techniques may overlap, those it is left to the government to decide whether one or more technique can attain its set objectives.

The main aim of studying legal method is to enable students to reason like a lawyer. This makes it paramount for legal reasoning to be discussed so that students would understand its concept.

    The Black Law Dictionary 9th ed defines legal as

 ‘’of or relating to law; falling within the province of the law’’.

    The Concise Oxford English Dictionary, 5th ed ‘’reasoning’’ as:

‘’thinking persuasively in a coordinated, orderly, sensible and logical manner.’’

Thus, it can be drawn from the above definition that legal reasoning is the art of thinking persuasively in a coordinated, orderly, sensible and logical manner in relation to law.

It is also the reasoning method of lawyers on how to resolve disputes, improve the law, individual and society.

The Language of The Law

    The language of the law does not mean a whole new language but it means a combination of words or phrases usually in written or oral form, used by lawyers in conveying legal thoughts and reasoning.

Characteristics of Legal Language

The language of the law has so many features but the main features will be discussed as follows:

  1. Law is expressed in General Terms:

    The law is usually worded in general terms in order to deal with all aspects of life and issues of people in diverse situations. For instance, Section 317 of the Criminal Code provides that:

        ‘’A person who unlawfully kills another in such circumstances as not to

          constitute murder is guilty of manslaughter.’’

The above provision generalises that if a person unlawfully kills another and it is not murder, it would be regarded as manslaughter. It did not waste its time stating the scenarios that would constitute manslaughter.

    Section 311 of the Criminal Code provides that:

        ‘’any person who does any act or makes any omission which hastens the death

          of another person who, when the act is done or the omission is made, is  

          labouring under some disorder or disease arising from another cause, is

         deemed to have killed that other person.’’

     However, there are some instances where the law is specific. For example, Section 6(1) of the constitution of the Federal Republic Of Nigeria provides that judicial powers shall be vested in the judiciary while Section 6(5) of the same constitution lists the various courts which the constitution was earlier referring to.

It is legal reasoning that guides whether the law should apply to general or specific circumstances without being fluid as to lack direction or focus.

 

  1. Use of Abstract Concepts:

Lawyers are not allowed to use words anyhow or use words that are not in use. Lawyers usually use technical words that are already in vogue but these words have deeper meanings than their literal interpretations. Such words include: legal personality, contract, estate, rule of law, separation of powers, ownership etc. for example, the rule of law concept has three main components:

  1. Supremacy of the Law
  2. Equality Before the Law
  • Fundamental Human Rights

                                                   

 

  1. Other Features Of Legal Language:
  2. Use of common words with uncommon meanings: for example, where a layman will say ‘I have a case in court’, a lawyer will say ‘I have a matter or lawsuit’. A layman would say ‘the court should hold that’ while a lawyer would say ‘it is submitted that.’
  3. Frequent Use of Latin and French phrases: such words include ultra vires, audi alterem patem (hear both sides), nemo dat quod non habet (you cannot give what you don’t have), consensus ad idem (meeting of minds). These are word with technical meanings.
  • The use of resonant words like ‘the truth, the whole truth and nothing but the truth’’.
  1. Frequent use of archaic words such as herein before, hereinafter, aforementioned, foregoing etc. the failure of lawyers to modernize these archaic words has drawn criticisms.
  2. The use of special words with special meanings that cannot be understood by lay men: ‘’my briefcase has not been perfected’’ which means ‘’I have not been paid my professional fees’’.
  3. Lawyers and judges wear dark robes, wigs and behave formally at public hearing under the protection of the police.

The reason for the technical language of law is to mystify it so that laymen won’t understand but the legal profession has been advised to dump its mystery language and put on the garment of modernity.

The importance of legal reasoning

  1. To interpret the law better
  2. To make application of law easy
  3. To make justice accessible
  4. To enact better laws

The following are key terms that facilitates the understanding of lkegal reasoning:

  1. Principles:
  2. Rules
  3. Legal Rhetoric

 

  1. Principles: it was defined by Farrar and Dugdale as:

        ‘’An established legal truth or proposition that is so clear that it cannot

           be reproved or contradicted except by a proposition which is clearer.’’              

Legal principles are the standard by which are to be judged in order to determine their validity. Some well established principles in constitutional law include the rule of law, separation of powers amd supremacy pf the constitution.

Any legal principle that contradicts established rul;es may become susceptible to legal crictisms and may be struck out in court.

 

  1. Rules: they are the specific instances in which legal principles are to be applied. For example, the principle of natural justice has two components:
  2. Audi alterem patem (fair hearing)
  3. Nemo judex in causa sua (one should not jusdge his own his cayse)

 

  1. Legal Rhetoric: Plato defined rhetoric as ‘’the act of winning men’s minds with words. In other words, legal rhetoric is the act of seeking to persuade someone either through writing or speech to accept one’s position.

     It is therefore paramount for a lawyer to continuously develop his  mastery of language and use of words.

Legal rhetoric is achieved by appealing to authority. This authority can be primary authority which includes statutory and judicial authority. While secondary authority include opinions, writings, legal commentaries etc. primary authorities when quoted are weightier and more important than secondary authorities. For instance, a plaintiff who uses primary authority to back up his argument is mopst likely to win his case over the defendant that used secondary authority.

    It require having sound knowledge of law and skills in the application of legal principles and these can be acquired through academic trainings, post call practical experiences etc.

 

 

Methods of legal Reasoning

There are three methods of legal reasoning/logic that are usually uised by lawyere to substantiate their argument.

 

  1. Legal logic: it helps a lawyer to express himself precisely and put across his thoughts firmly. It also teaches a lawyer how to detect bad arguments and identify the major flaws which may mislead the court if they go unnoticed.
  2. Syllogism or deductive reasoning: it starts from a major premise and brings in the minor premise amd from these two premises, ome deduces the logical conclusion.it is the process of inferring the conclusion of a minor premise from the major one. The lawyer makes use of statutes as authority. Examples include:

Any man who rapes a woman will be imprisoned      (major premise)

Mr Kola has raped Ada                                                (minor premise)

Therefore mr Kola must be imprisoned                        (conclusion)

  1. Inductive reasoning: it is the opposite of deductive reasoning in that the reasoning is from general proposition to thye conclusion. The lawyer makes use of judicial provisions. Where negligence  caused an injury to MR B , MR B’s lawyers in his inductive argument can present his case like this:
  2. In Donoghue V Stevenson, a party that suffered injury as a result of the negligence of another person was awarded damages
  3. The above case is in similar position or in all fours with the issue at hand or before the court.
  4. Therefore, mr a should pay damagesa to Mr B for causing him such injury through negligence as a result of the above authority.
  • Analogical reasoning: it is used by judges in order to determine if an authority cited is appropriate. For example, the case of Carlill V Carbolic Smokeball Co cannot be used in a case relating to illegality of a contract. This is due to the fact that by analysis it can be deduced from  the case that it doesn’t  have facts that concern the illegality of contracts.

 

Legal reasoning and practical reasoning:

In deciding a case, the law does not use logic alone because the law is not logic and logic is not law.

Practical reasoning frequently uses analogy and is mainly concerned with weighing various consideration before coming into a reasonable conclusion. The judge relies on some of the factors mentioned below

  1. The arguments of the counsel
  2. Theories of laws
  3. The weight and probative value of evidence
  4. Whether the decision is just, reasonable and in accordance with public policy
  5. Whether it is a rational decision among others
  6. The law applicable in the case and the judicial authoroities.

 

Although, logic is a part of legal reasoning, it is only one of the many ingredients that is used to determine the outcome of a case.

 

Legalism

It simply means the strict application of law without sometimes ensuring the consideration of justice in the circumstance. It is too concerned with the details of law instead of following the spirit of law and fulfilling the main purpose of law which is to do justice. The problem of legalism brought in the principle of equity which helps to mitigate the hardships caused by the strict application of law.

    It is a known fact that man is a complex individual who lives in a complex world with complex individuals and thus there is likely to be strife and disagreements among them. In the olden days, such disagreements were resolved with vengeance, banishment, flogging etc. But due to developing times, there was a need for an institutional process called the judiciary to resolve these disputes.

The judiciary is the third arm of government which consists of judges in a jurisdiction that administer the law according to the laws of the land. In legal parlance, it means the temple of justice. Since some law students will likely end up as lawyers it is therefore important for them to understand how legal reasoning in judiciary process occurs.

A.O Sanni defined Legal reasoning in judicial process as:

        ‘’the process of careful thinking by a judicial officer in the course of

         resolving legal issues presented by a party to a legal action before the

        court for determination.’’

The factors that influence judicial reasoning process include personal interest of judges, religion, independence of the judiciary etc.

 

Shifting of Facts in Courts

    Section 2(1) of the Evidence Act 2011 states that a ‘’fact’’ includes

  • anything, state of things, or relation of things, capable of being perceived by the senses.
  • Any mental condition of which any person is conscious;

Thus, the facts of a case are the versions of the story that has been accepted by the    court after being satisfactorily proved by the party on whom it lies to be proven.

For example, if Chima sold her bag to Miss Ope for twenty thousand naira but   Miss Ope failed to fulfil her promise to pay the money. Chima may decide to sue her to court for the recovery of the money and for damages and for the expenses incurred for pursuing the matter in court. In order to win the case, Chima must prove the fact that exists by showing that Miss Ope failed to pay her money. The burden of proof is shifted if a party has established that a fact exists, then, the other party will have to disprove these facts or pay attention to other facts.

Thus it can be inferred from above that shifting of facts is the process by which the responsibility of proving the fact moves from one party to another.

 

Shifting of Facts in Civil Cases

Affirmanti Non Neganti Incumbit Probatio states that the burden of proof lies upon him who asserts and not upon him who denies. Moreover, S136(1) of the Evidence Act, 2011 provides that the burden of proving any fact lies on the person who wants the court to rely on those facts. The initial burden of proving the facts lies on the plaintiff and after proving his facts, the burden of proving that the plaintiff facts is false will fall on the defendant.

In Adenle V Oyegbade, the dispute was over the ownership of a title of the land. The plaintiff claimed that the land is a family land and was only in the possession of the defendant. The trial court placed the burden of proving ownership on the plaintiff while the supreme court placed it on the defendant.

 

Shifting of Facts in Criminal Cases    CHECK THE EVIDENCE ACT FOR MISTAKES

 Section 138 of the Evidence Act 2011 provides that in criminal cases the burden of proof will rest on the prosecution to prove its case beyond reasonable doubt. The burden does not normally shift to the accused as was stated in Section 36(5) of the 1999 Constitution that in a criminal case, an accused person is presumed innocent until proven guilty.

However, there are some instances where the burden of proof shifts to the accused:

  1. Where the statute places the burden of proof on the defendant. For instance, S137 of the Evidence Act states that after the prosecution has proved its case beyond reasonable doubt, the burden of proving reasonable doubt shifts to the accused.
  2. Where the accused raises the defence of exemption or qualification from the provision of law creating the offence; Section 139(1) Evidence Act 2011.
  3. Where special facts are within the knowledge of the accused; Section 140 Evidence Act 2011.
  4. Where the accused raises the defence of intoxication or insanity; Section 139(3c) Evidence Act 2011.

 

Shifting of Law

This occurs when a party relies on a law that has been repealed or amended, the burden of revealing this flaw then shifts to the other party who is aware of it. If none of the party know about this flaw, the burden then shifts to the Judge because the court knows the law (Juria novit curia) and ignorantia judicis est calamitias innocientis (the ignorance of the judge is the calamity of the innocent).

 

Judicial Precedents

Judicial precedent originates from the common law doctrine of stare decisis which means ‘’let the decision stand’’. It simply means that similar cases must be treated alike to achieve uniformity and certainty in the administration of justice. If a judge fails to meet this criteria, his decision will most likely be overturned.

Judicial precedent could either be binding or persuasive. They are binding when they are made by a court of higher rank and thus, all courts of lower rank must follow the reasoning inherent in such decision. It is persuasive when they are given by a court of concurrent jurisdiction or foreign courts. For example, decisions of a State High Court are not binding but have a persuasive effect on other State High Courts. This golden rule was affirmed in Global Transport V Free Enterprises Nigeria Limited (2001) 2 SCNJ 224@243 Case.

 

Ratio Decidendi    

It is not all aspects of judgement that is relevant in determining the principle decided in a case. It is the ratio decidendi (reason for the decision) that is relevant in determining judicial precedent. It is the legal principle on which the decision is based without which the court would not have reached its decision.

Where the majority judgements are consistent with each other and are based on the same legal principle, the principle is the ratio decidendi of the case. A.Obilade in his book, The Nigerian Legal System suggests that a proposition of law which is not supported by majority and which is rejected by majority should not be considered as the ratio decidendi of the case.

 

Obiter Dictum

Black law Dictionary 7th ed defines obiter dictum as ‘’words of an opinion entirely unnecessary for the decision of a case…’’. Obiter dictum is not a present judgement but it can be adopted as ratio decidendi in a later case. The weight attached to obiter dictum depends on the hierarchy of the court within the judicial system that the obiter dictum was made and the level of respect the judge commands.

 

Can Judges Make Laws?

The answer is yes. This is because case laws developed by courts become binding according to the principle of stare decisis or judicial precedent. However, their law is not legislation because it was not passed by the primary law making body which is the national assembly.

There are many agencies saddled with the function of making laws such as the legislature, ministries, local government, corporation, universities etc. however, our focus here is on the legislature which is the primary law making body  whose major function is to make laws. For instance, S.4 of the 1999 constitution of the federal republic of Nigeria (as amended) vests legislative power on the national assembly which comprises of the senate and house of representatives. S.42 vested the same power on the various Houses of Assembly.

Reasons for Legislation

  1. The Dynamic Nature of the Society:

The subject of law is human being and it seeks to regulate human conducts. Thus, as society changes and develops new attitudes, ideas and beliefs, the law also changes to ensure conformity with the society. Some of our old laws were invalidated on the ground that they were repugnant to natural justice, equity and good conscience. An example is the abolition of the Osu caste system in Eastern part of Nigeria. Laws have been used to regulate the dumping of refuse and wastes in public places in order to avoid health issues.

  1. Shift in the Political and Economic Ideology of Government:

    Law is an instrument of political, social and economic change. This means that   changes in government causes changes in the political and economic ideology which causes an inevitable change in law. According to P.S Atiyah, Law and Modern Soceity:

        ‘’A change in government must bring new changes in law because a new

          government wants to aim in different directions.’’          

For instance, the petroleum trust fund (PTF) started under the Buhari’s military regime was abolished by the civilian rule in 1999 by Olusegun Obasanjo.

 

  1. Global Shift in the Value System:

Legislations are made to embrace the community as well as the global international value system. A new legislation is inevitable in order to incorporate international standards and values into domestic laws.  There are new legislations in Nigeria on child rights, women rights, conservation and preservation of nature, protection of endangered species etc. a number of these legislations are caused by a country being a signatory to several international organisations and non- governmental organisations with global coverage.

 

  1. Scientific and Technological Breakthrough:

    New legislations have been made to cope with scientific and technological innovations in order to maintain law and order in the society. Technologies such as  Satelite Communication and computers have made information easy to pass but has brought problems, rights, duties and liabilities which makes it necessary to make new laws to guide them.

 

  1. Arrest of Anti -Social Behaviour:

    The Government exist to preserve law and order, guarantee life and property and secure the populace. Laws are there made to protect the public from deplorable acts and omissions of individuals and groups. Examples of such legislations include: the Advance Fee Fraud used to combat 419, Money Laundering Act, Establishment of the NDLEA etc.

 

In democratic countries around the world, legislative proposals (bill) are tabled before the legislative houses in the form of bills or memorandum and go through certain processes and critical analysis before they are enacted into law by the general assembly.

Legislative proposals does not have a conventional form but it must be articulate, well-prepared and exhaustive statement of what is expected to be passed by the parliament and assented by the president. It must be logically and structurally presented in order for the subject matter to be specified. For instance, a proposal on law in respect to cultism among Nigerian students would be structured like this:

‘’Secret Cultism  – The menance of cultism in institutions of learning in Nigeria.’’

Legislative proposal will highlight the problems, possible solutions and more proposals on the subject matter will be made. It may also be contained in opinions expressed in the electronic and print media or may be channelled through pressure groups and other concerned professional groups.

 

 

Legislative Drafting

Legislative drafting are finished products of what started as a proposal that is transformed into bills that are prepared by the draftsman.

An expert draftsman is needed in the drafting of bills because a bill that is not well structured risks being thrown out by the legislature.

A draftsman must have a natural flair for his career. He must possess imaginative, analytical and careful abilities. He must have retentive memory and have a good mastery of English language. He must be amenable to corrections, suggestions and criticisms. He must be organized and familiar with socio-cultural and political peculiarities of the country laws of which he has to draft. He must follow the instructions of his client which must be clear but if it is ambiguous of vague, questions should be asked and relevant reports should be added for detailed legislative bill.

Qualities of a Good Draft

  1. Mastery and Familiarity of Language: Although S55 of the 1999 constitution stated that matters of the house must be conducted in English, Hausa, Yoruba and Igbo. This provision is hard to comply with in a multi-ethnic country like Nigeria. Since, English is our official language, the draftsman must use it and avoid using other languages or use them sparingly to avoid confusing a lay man.
  2. Direct and Explicit Expression: A legislation should be direct and devoid of metaphors and verbal fireworks to avoid confusing a lay man and to reduce the burden of interpretation on the judge.
  3. Economy of Language: the draftsman should practice brevity. Repetition of synonyms does not make a good legislation. What makes a good legislation is the brevity of language and application of punctuation where necessary.
  4. Orderliness: the draft must be logically arranged to make it attractive to readers.
  5. Archaism: the draft must be devoid of archaic words like herein before, aforementioned, foregoing, herein etc, used in the past to avoid confusing readers.
  6. Constitency of Terms: the draftsman must stick to the use of a particular tense or style it adopted in the beginning. It is not an avenue to demonstrate a gymnastic use of English words or knowledge of English literature.
  7. Use of connective or definitive words: words like ‘’shall’’ or ‘’will’’ are very sensitive as they have different meanings. So a draftsman must choose words that reflect his intention.

 

A draftsman should pay attention to issues of ambiguity, vagueness and open texture among others.

Ambiguity

It arises when a statute can be interpreted in various ways. It can be lexical, syntactic or lexical ambiguity. Ambiguity and vagueness causes a statute to be defective in form, structure or content.

Vagueness

It is worse than ambiguity because the meaning is cloudy and not clear. It doesn’t have any precise meaning.

Open structure

It is caused when a draftsman drafting a legislation tries to make it general to apply to future issue. This causes flexibility that leads to vagueness.

 

Legislative Process in civilian regime

    The process by which a bill becomes law in civilian regime is cumbersome and it will be discussed below.

The bill is first introduced into the house based on the house rules. The bill is then first read by a clerk of the house or any designated person. This is to intimate the legislature with the subject matter of the bill. The bill is distributed to legislators and a time is fixed for the second reading.

At the second reading, the bill is effectively discussed and sent to the relevant standing committee for a more detailed debate. At this stage, the text of the bill is assessed word for word, clause by clause to make amendment. After, The committee stage comes the report stage where the bill is presented in the amended form and here the success or failure of the bill is evident.

In the third reading, the bill is read for the last time and a 2/3rd majority vote is needed for it to be passed to a second legislative house, if not it is thrown out. If it is not thrown out, it ois passed to the second legislative house which follows the same legislative process above until it is passed to the president for assent. If the president assents, it is enacted into law. If the president refuses to assent, it is then passed again by a 2/3rd majority of the two houses and it becomes law without the president’s assent. It is used to check the excesses of the executive.

The major advantage of this process is that various segments of the society are carried along in the process of passing bills into laws.

 

Law Making Process in the Military Regime

In military regimes, there is fusion of legislative and executive functions. The legislative process in military regime is relatively easy. All it takes is for it to be typed on a sheet of paper and signed by the head of military government into an edict or decree. Before it is signed, it is discussed by the military ruling council or other relevant military council. The easiness of this process has made it subject to criticisms because it is one of the shortcomings of the military legislation.

 

Types of legislation

  1. Public General Act: this applies to everyone and everywhere within the state. It includes the penal code, criminal code, matrimonial causes act, copywright act etc
  2. Local Act: applies to a particular community. For example, law imposing a curfew or declaring a state of emergency in a state.
  3. Private Act: it is restricted to a particular application or a specified persons or body of persons. For example, law granting a state pardon to a convicted person, confisticating certain properties etc
  4. Consolidating Act: a newly passed statute that re-enacts an earlier statutes by modifications, additions or alterations which is to be used for a particular purpose.
  5. A Code: this is a statute that strives to put together in one document the provisions of the existing legislations. Examples include the criminal code and the penal code.
  6. Delegated legislation: these are by-laws passed by agencies other than the legislature like commissioners, chief justice, government institutions, local authorities etc.

 

     The judiciary is the third arm of government empowered to interpret laws made by the legislature and settles disputes between individuals and also between government and individuals. Sometimes statutes made by the legislature are not clear and thus makes the task of interpreting laws by the legislature cumbersome. The interpretation guidelines used by the judiciary will be discussed below:

  1. The Literal Rule:

It is also known as the plain meaning rule. This is when courts give laws their ordinary or literal meaning. It believes that the intention of the law must be given on its face and as it appears. The defect of this rule is that no law has ordinary meaning except in the context where it is used. The application of this rule has led to absurd conclusions.  In the case of Awolowo V Shehu Shagari, where the court ruled in shagari’s favour based on face value but the judges reached opposing conclusions.

    Also in the case of Akintola V Adegbenro, the court was faced with the problem of interpreting S.33(10) of the 1963 constitution of western Nigeria which states the Governor can remove the premier, if it appears to him that the premier no longer commands the support of majority in the house of assembly. This is absurd because if it is looked at in face value, it could mean that even in a dream.

    Relying on plain meaning cannot work because words can have more than one meaning. It leads to injustice. Moreover, a draftsman is not perfect so errors can occur.

 

  1. Golden Rule: it was created to tackle the problems of literal rule.it is applied when the application of literal rule would lead to injustice, vagueness or absurdity. In the case of Council of University of Ibadan V Adamilokun, the supreme court was faced with whether to declare the edict of the state military government as void because of its inconsistency with the federal military government decree. The edict was void by statute of3(4)  of the Constitutiuon (Suspension and Modification) Decree No. 1 1966 but the edict was valid by S.6 of the same decree but the court ruled in favour of the federal military government in that it wouldn’t be logical for there to be inconsistency with the superior authority.

 

Merits of this Rule

  1. It enables the court to avoid absurdity by adopting an interpretation that will promote the intention oif the parliament.
  2. It adopts a reasonable interpretation where a literal interpretation will lead to absurdity.
  3. It enables the court to correct a statute in order to reflect the intention of the legislature and to ensure justice.

Demerits of this rule

  1. The process is cumbersome
  2. It usurps parliament’s duty to amend laws
  3. It makes the court to depart from clear words ofd statute on ground of supposed ambiguity.

 

  1. Mischief Rule:

 

It considers the statutory purpose and historical antecedence of laws made by the legislature.  It requires a judge to look at a statute to see the intention of the parliament and interpret it to remedy the wrong in society that it was meant to correct. Thus, where a statute has been enacted to remedy a wrong, the interpretation which will remedy the wrong is the one adopted by a court. This principle was formulated and applied in the Heydon’s case by Lord Coke.

 

Merits of Mischief Rule

  1. It enables judges to adopt a meaning that will remedy mischief, crime or wrong in the society
  2. It enables judges to express their opinions as to social policy
  3. It enables judges to suppress mischief and advance a remedy.

 

                  Demerits

  1. It usurps the parliament’s duty to amend laws
  2. It creates room for uncertainty
  3. It leads to bringing in interpretations that were not intended by the parliament.

    According to Francis Bennon, there is no golden rule, nor a mischief rule nor a literal rule or any other rule at all. Instead there are a thousand and one interpretive criteria.

    Other rules apart from the ones mentioned above have evolved to help judges in interpreting statutes:

  1. A statute must be read in whole in order to understand the parliament’s intentions as expressed in the statute.
  2. Ejusdem generis rule: when a list of specific items is followed by a list of general words, the general words is then restricted to the same kind of words as the specific words e.g pie, cake, doughnuts are snacks and thus, it would be wrong to add main food items or drinks.
  3. Expressio Unis Est Exclusio Atterius; where the express mention of one thing results in the exclusion of others e.g a statute that specifically applies to a principal or vice principal does not include teachers or other staffs
  4. Nositur A Socis: this is known as the context rule. A word is interpreted in the context in ehich it appears.
  5. Lex non cogit ad impossibilia: a satute should not be construed in manner that would command the doing of impossibilities.

Semantics in law

Another problem of law is language. For instance, there are times when scientific terms like ‘’fluid’’, ‘’liquid’’. ‘’vapour’’, ‘’magnetic’’ appear in statutes and the meaning is different from their original meaning. It becomes the job of the drafter to include the meaning of these words or concepts in statute.

In the case of Akintola V Adegboro, the dispute was based on whether the premier was wrongly or rightly removed. The problem was on the interpretation given to the words that a Governor can remove a Premier.

In the words of Farrar V Dugdale

        ‘’different legal systems employ different styles of drafting in an attempt to solve the problem.’’

This issue can be resolved when complexity in language is reduced  or an interpretation clause is introduced. S.318 of the 1999 CFRN(as amended) provides interpretations of some key words and expression and defines their context as used in the constitution. There is also interpretation Act to fall back on where a particular statute does not provide its own definitions.

The term ‘’Sources of law’’ means the origin of laws. It refers to the materials where a legal practitioner or a judge derive answers in order to solve a legal problem or materials through which a legal practitioner or a judge or a court would find reliable authorities for a particular legal question.

The sources of Nigerian law can be classified into two: primary sources and secondary sources which will be discussed below.

 

  1. Primary Sources: they are the most important of the sources of law and have a binding effect on all courts throughout their jurisdiction. They include:
  2. The English law
  3. Nigerian legislation
  4. Delegated or subsidiary legislation
  5. Nigerian customary law
  6. Case law or judicial precedent
  7. International law

 

  • The English law: the received English law is without a doubt a very important source of law. This is because it came into being when Nigeria was still a British colony in the 19th Various legislatures in Nigeria have made enactments which received English law directly into their jurisdiction or extended the force into Nigeria. An example of this is Section 45(1) of the interpretation Act which states that:

        ‘’subject to the provisions of this section and in so far as other provision is made by any federal law, the common law of England and the doctrine 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 executive   legislative competence of the federal legislature, shall be in force elsewhere in the    federation.’’  

However, these statutes have not been received into all the jurisdictions in Nigeria such as Edo, Delta, Ekiti, Osun, Ogun and Ondo state.  These statutes are still in force in Nigeria even though they have been repealed in England. What constitutes a statute of general application is usually answered through case laws.

It is important to note that that it is only English laws that have been domesticated that are binding.

 

  • Nigerian Legislation: these are laws enacted by the Nigerian national assembly. S4(2) of the constitution of the federal republic of Nigeria states that:

        ‘’the national assembly shall have powers to make laws for the peace, order and good  governance of the federation’’.

They are called Acts, Ordinances, Laws, Decrees or Edicts depending on which form of government they were made under.

Acts are enactments made by the central legislature during a civilian regime e.g the laws made by the National Assembly which comprises of the senate and the house of rep.

Ordinances are enactments made by the Nigerian central legislature before 15th October 1954 when federalism was introduced.

Any enactment made by the elected state legislature e.g state house of assembly is known as a Law.

Decrees are laws made by the federal military government during a military regime.

Edicts are enactments made by the federal military governor during a military regime.

All federal legislations till 31st January 1990 in Nigeria are consolidated in the laws of the federation of Nigeria 1990 (L.F.N 1990). It was revised in 2002 and now published as L.F.N 2004.

 

 

  • Delegated Legislation: these are enactments made by bodies other than the legislature pursuant to express powers conferred on them by the legislature. The rationale behind this is that it is practically impossible for the legislature to make laws for every aspect of human life and there are some fields where technical expertise is needed which the legislature may lack, this makes it necessary to delegate legislative powers via enabling statute. Examples of delegated legislations are: bye-laws of local governments, regulations of public corporations, statutory instruments by ministers etc.

The maxim ‘’Delegatus non potest delegare ‘’ simply means that a person to whom power has been delegated to  cannot delegate same to another without express or implied consent from the person that delegated the power to him. All delegated legislations made pursuant to federal statutes were also consolidated with their principal statutes under the LFN 1990.

 

  • Nigerian Customary Law: customary laws are the customs of the people or members of a community which is generally accepted as binding among them. It is usually classified into ethnic law and Islamic law. Ethnic laws are those laws that are unwritten and diverse from one ethnic group to another. They are practiced predominantly in southern part of Nigeria. Islamic laws are laws mainly gotten from the holy Quran and applied predominantly in the northern part of Nigeria. However, before a customary law can be applied in any Nigerian court it must pass the three tests of validity:
  • It must not be repugnant to natural justice, equity and good conscience.

In Esugbayi Eleko V Officer Administering the Government of Nigeria, Lord Atkin held that a barbarous custom should be rejected if it was repugnant to natural justice, equity and good conscience. However, the fact that a customary law is inconsistent with the rules of English law does not make it invalid.

  • It must not be contrary to public policy.

In Cole V Akinleye, the court declared that that a customary law that gives illegitimate children equal rights with legitimate ones as void on the ground that it was contrary to public policy.

  • It must not be incompatible directly or by implication with any law for the time being in force.

 

  • Case law or Judicial Precedent: It is one of the striking characteristics of common law brought into the Nigerian legal system. The supreme court declared in the case of Global Transport V Free Enterprises Nigeria Limited (2001) 2 SCNJ 224@243 that the doctrine of precedents or what is normally referred to as stare decisis lays down a golden rule that decisions of higher courts are binding on lower courts and decisions of courts of co-ordinate jurisdiction are for all intents and purposes binding between these courts except if the previous decision was made per incuriam. Case laws allows for certainty and uniformity in the law. It is one of the striking characteristics of common law brought into the Nigerian legal system.

 

 

  • International laws: as a result of the growing interactions among nations of the world, various agreements have been put in place to regulate their conducts in order to prevent anarchy. Such agreements are variously known as conventions, treaties, charters, covenants etc. in Nigeria, international treaties and agreements are not binding unless they are enacted into law by by the national assembly. For example, The Supreme Court in Sani Abacha V Gani Fawehinmi declared that the African Charter on Human and Peoples Rights 1981 is binding on Nigerian Courts because it has been incorporated into the laws of Nigeria. An international law can also be binding when an ambassador or representative of the country signs it into law.

A.)

  • Statutory materials are sources of laws which include statutes like Criminal code, Sales of Goods Act 1893, Infants Relief Act 1874, the 1999 constitution etc
  • Judicial materials are case laws or judicial precedents and they include Nigerian law reports.

 

 

 

  1. Secondary Sources of law: these only have a persuasive effect on courts and thus are not binding. Some of them are like references to primary sources, while others are opinions of important scholars. They include:
  • Law Reports: it can be found in any country where judicial precedent is applied like Nigeria. It refers to a compilation of reported cases from which lawyers and judges can use to ascertain the position of law in their areas of jurisdiction. The oldest law reports are the Year Books (1282 – 1537). They are regarded as the most comprehensive reports but have been criticized to have been mere notes taken by students  and law practitioners for academic or professional purposes. The first form of law report in Nigeria was the Nigerian Law Reports (NLR) which has now become extinct. Nikki Tobi laments that one regrettable trend in the law reporting system in Nigeria is the lack of sustainability. There are several law reports in Nigeria today and some of them are the Nigerian weekly law reports (NWLR), Supreme Court of Nigeria Judgments (SCNJ). All Nigerian Law reports (ALNR), federation weekly law reports (FWRL).
  • Law Textbooks and Treaties: these are textbooks, articles or treaties written by learned scholars and jurists on different subjects. They are used as authority where there are scanty or no judicial authorities for a case. Examples of classical authors of English law textbooks include: Coke and Blackstone, Dicey, Cheshire, Wade etc. while Nigerian authors of law textbooks include Obilade, Kodilinye, Aguda, Sagay etc. however, where the provision of the textbook is contrary to a previous judicial authority, it will not be used.
  • Periodicals, Journals and Legal Digest: They are produced in various forms and colours in Nigeria.  Some are academic, some are professional while some are a mixture of both.  Law journals are published by various law faculties and private publishers. Digests are usually abridged summaries of proceedings in court.
  • Legal Dictionaries: these are used in absence of statutory definitions and some of them include: Black’s Law Dictionary, Jowitts Dictionary of English law, Stroud’s Judicial Dictionary etc.

Other secondary sources of law are newspapers, foreign materials, bibliographies etc.

Codifications of laws

It is a specie of statute that sums up the provisions of existing legislations, common laws and equity on a particular subject. It is a detailed compilation.

An argument against it is that it would hinder the easy reference to several sources. It would restructure the law and it would be hard to distinguish between provisions  like civil and criminal. It would hinder the flexibility of customary laws  and that it is not suitable for a multi-ethnic society like Nigeria.

Fredrich Von Savigny opposes it because it encourages drastic and revolutionary change as opposed tpo his preference to the evolutionary growth of law. It is also expensive and time consuming and requires intellectual skill. It destroys continuity in legal development.

An argument in favour of codification is that it is useful for easy reference as matters are written in one document rather than scattered. There are different laws on land that overlap which codification prevents by making it intelligible to them.

    It unites customary laws giving the people a sense of unity. Laws that overlap have loose ends need codification. It encourages reforms as well as it takes in writing the developments of the law. If a code is revised every 10 years it could bring its criticism to shame. It also simplifies the word of judges as confusion and uncertainty is settled in codification. The advantages outweigh the disadvantages.

Legal Research: ‘’Research’’  simply means a careful and detailed study of a subject in order to discover all information about it.  It is also known as the process of conducting a search to get facts or information.

    Therefore, legal research is the use of library materials to seek recorded information on a particular legal problem in order to authoritatively determine the rights, duties and liabilities of the parties. It is also known as the search for source materials to be used for academic work, to back legal arguments and help in deciding cases.

King George 111 is credited to have said that lawyers do not know the law much more than other people but they know better where to find it.

 

Importance of Legal Research

Law is dynamic and thus keeps changing. It is necessary for a lawyer to research when he is faced with a legal problem so as to decide the position of his client on a particular matter. If our laws were perfect, there may probably be no need for research.

The basic tools of legal research are primary and secondary source materials. An understanding of these source materials will facilitate an effective research in various aspects of law. The library is to a lawyer, what a laboratory is to a scientist. A law student who wants to be a lawyer must familiarize himself with law textbooks, law reports, statutes, case laws etc. it is not good to rely on those alone because the author could have made a mistake or the law has been repealed or amended. It would be better to constantly read new editions of law textbooks, law of the federation and decisions of the courts on record. The following are the reasons for legal research:

  • To refresh memory and be aware of changes in laws
  • To find applicable statutes, laws, case laws or judicial precedents to be used in academic work or to persuade the court to adopt his own position or reverse its previous decision
  • To know the rights and duties, weaknesses and strengths of a client’s case
  • To know and rightly decide the rights and duties of parties in a dispute.
  • To improve one’s argument and advocacy
  • To identify gaps and push for reforms.
  1. The Library: it is a store house of information. It is a room or building where books and other records and information are kept for reading and borrowing. It can also be an electronic collection of relevant information. It can be in printed form and it can also be in electronic form such as video tapes, audio, sound recordings etc.
  • Role of the librarian: a librarian is an official in the library. He takes care of books and other sources of information in the library. He supervises library activities and ensures that relevant books and information are stocked and properly shelved. It is a very good advantage if a law librarian is legally trained, he can help the student or legal practitioner in gathering primary and secondary materials to simplify research work. However, these types of librarian are not common today and so it is required of a researcher to know how to use the library effectively without needing the help of a librarian.
  • Organization of the Library: we have the Acquisition department, Catalogue Box, Reference Section.
  • Acquisition Department: this is where books, pamphlets, government publications and other materials are received and processed. These materials may are acquired by purchase, gifts and by legal deposit especially if the library has been made a depository by the government. For example, the national library of Nigeria is a legal depository for the whole country and thus receives three copies of all publications.
  • Catalogue Box: it is a record of materials in the library which enables a researcher to find a book or other library material as long as he has knowledge of the author’s name, title of the work, the subject matter,. A general card catalogue lists all the books in the library while a special card catalogue lists books of a special class.
  • Reference Section: this section is only open to a restricted class of readers and books there are not to be borrowed. It usually contains rare books that are in high demand. It is the part of the library where library staff answers reference questions and also provides bibliographic services to library patrons. These materials are housed in a separate section within the library and are arranged to suit the peculiarity of that material.
  • Identification of Library Materials: a book can be identified through the title, author’s name, the cover, publisher, date of publication etc but the title page is the most important printed page of the book. A researcher doesn’t have to waste his time and energy browsing through the shelf for relevant books since most books in the library are arranged based on their subject matter. There are two popular types of classification system and they are:
  • The Library of Congress Classification: this means that the call mark or the identification number starts with a letter of the alphabet such as K108.4. Each alphabet has a particular subject it is based on. This classification is mostly used in Nigeria.
  • The Dewey Decimal Classification: the call mark begins with a number such as 682.33.

Call numbers are used to trace a book and no two books in the library have the same call number.  For example, if a book written by John Cyprian is given the call number B358.C54. B tells us that the book is on religion. 358 identifies the subject e.g ethics or metaphysics. C is the first letter of the author’s name while 57 is a number which identifies the author. You can trace a book on the shelves alphabetically by its first letter in the call number and numerically by remaining numbers and letters.

A library catalogue can also be used by a researcher to find relevant materials. They are usually located at the entrance of the library or anywhere where they can be easily located. They can be in electronic form, printed form etc but the most important form is the card form. Regardless of the form, materials may be located in them by knowing the author, subject or title but the most important of them is the title entry. There is usually one card for the author, subject, title, all in the same book. However, literary works are not entered into the library catalogue under their subjects.

The library contains both legal and non- legal reference materials. The kinds of books that can be found in a law library are as follows: statutes, law reports, case laws, periodicals and reference books.

 

  • Indexing: an index is usually a table which enables information to be retrieved quickly. It is a key to the holding or section in a particular library normally arranged according to the access point. Some books may have their index before the main chapter or it may be at the end.

Card catalogue can also be regarded as an index. It can be periodical index or subject index. It is periodical index when it helps you find articles about a particular topic. It may be published monthly or quarterly or yearly e.g The Applied Technology Science Index, Art Index, Social Science Index and Education Index are some of the indexes published by H.W Wilson on several subjects. Meanwhile subject index identifies and describes the subject of indexes.

 

 

  • Cases and Citation of cases and reports: citation of cases is a reference to a legal precedent or authority that either substantiates or contradicts a legal position. It is important for citations of legal materials to follow a standard format so that a researcher can locate the resources cited. Citations are usually published in law reports. It has the following format:
  • The names of the parties involved in the law suit
  • The year the case was decided
  • The volume of the reporter containing the full text of the case
  • The page number on which the case begins and ends
  • The court deciding the case.

For instance: Nigerian Port Authorities V Aminu Ibrahim & Co. & Anor – (2018) LPELR – 44464(SC). However, there are some exceptions to this pattern.

An effective law reporting system facilitates the process of judicial precedents in courts. This is because a law report usually contains the details of a case that has been decided by the court and it helps in tracing previous judgments. The oldest law report in Nigeria started in 1916.  The only cases that are reported in law reports in Nigeria are cases decided by superior courts like The Supreme Court and the High Courts in Various States. An edited or published law report usually has the following format:

  • The title of the case
  • Name of the court
  • Name of the judges constituting the court
  • Catch words – usually indicates the subject matter of the case
  • Head note – it is the summary report of a case and its ratio decidendi.
  • Statement of the nature of the proceedings: an account of how the case reached the court including the essential facts and the names of the counsel who appeared
  • The actual judgment: it is the brief statement of the court’s decision in the case.

 

 

  1. Identification of Issues, Principles, rules, authoritative elements in books and judicial Opinions:
  • Issues: they are problems that are brought before the court in order to be resolved. For instance, if a dispute over the ownership of land arises between A and B, the case is brought to court to be settled. The counsels of both parties argue their cases and submit their evidence and the judge is left to resolve the evidence based on the witnesses and the evidences submitted to him.
  • Principles: they are gotten from judicial precedents. Courts are not bound to apply a principle in the same way that a rule is applied. This is because principles are seen as proverbs. Several contradictory proverbs may apply to the same situation and thus it must be carefully considered. Ronald Dworkin has explained that:

        ‘’All that is meant when we say that a particular principle is a principle of our law is that the principle is one which officials must take into account, if it is relevant, as a consideration inclining in one direction or another.’’

Ronald Dworkin has stated that in proving that a principle is a principle of law, one must mention the previous cases or statutes where the principle was cited, this would help in winning a case.

An example of a principle is the neighbor principle which was established by Lord Atkin in the case of Donoghue V Stevenson.

    However, since the neighbor principle is not a rule but a principle, a court might decide not to apply it especially when it has other competing principles which it decides to give preference to. For example in the case of Rondel V Worsley, the question that had to be decided was whether a barrister owed a duty of care to his client in respect of this presentation of the client’s case in the court. The court decided to ignore the reference to the neighbor principle and give preference to the need to have finality in litigation and the need to protect the position of the barrister as an officer of the court.

  • Rules: they are decisions reached by a court. Some of these rules may either be Ratio Decidendi or obiter dictum. Ratio Decidendi are the reasons behind a decision and have a binding effect on all courts while obiter dictum have no binding effect, they are only persuasive in nature. It has been said it ‘’we decide under rules but in the light of principles.’’ This indicates that a rule either applies to a case or it does not. If it applies to a case, the case has to be decided based on the rule.

However, a court can decide a case by reason of analogy where there is no clear existing rule of law.  For example, in D V. National Soceity For the cruelty of Children (1978) A.C 17, The House Of Lords has to decide whether the society was entitled to refuse to disclose the identity of one of its informers despite the fact that this information was needed for the plaintiff to institute an action for negligence against the society. The house of lord ruled in favour of the society by reason of analogy from the rule of law that allows government officials to withhold relevant evidence when its disclosure will harm a public interest in the effective and proper functioning of government.

  • Authoritative elements in Books: it has been previously mentioned that legal textbooks are very important as they serve as authoritative elements in research works. Where there are no precedents, the court may refer to legal textbooks for guidance. Only eminent works by accepted experts in particular fields are considered by the courts. Some of these eminent scholars are Glanville, Coke, Blackstone etc. some legal writers in Nigeria whose works are declared as authoritative are: Professor A.O Obilade, professor Ben Nwabueze, Dr A. Aguda, Justice Karibi Whyte, Juwstice C. Oputa and many more.
  • Judicial Opinion: it is the written legal opinion of the judge or the judicial panel in the course of resolving a dispute. It indicates the facts which led to the dispute and an analysis of the law which led to the decision.

The kinds of judicial opinions include: majority opinion and a dissenting opinion. Majority opinion is a judicial opinion reached by more than half of the members of the court, while a dissenting opinion is an opinion written by one or more judges who disagree with the majority opinion. It only has a persuasive effect.

 

 

  1. Analysis of Note taking: analysis and note taking is very essential to a law student and a legal practitioner. A lawyer writes down the instructions of his clients, asks his client’s questions in regard to the instruction and writes them down, the lawyer then analyses these instructions in order to be able to carry out his legal work effectively. He may also consult his colleagues or his seniors for guidance as analysis of note taking is not as simple as it appears.

 

  1. Use of Authorities in Legal Argument and Legal writing: a lawyer must be able to persuade the court to give judgment in his favour by citing relevant authorities such as cases and statutory provisions. The judge gives judgment in favour of the party who has the cited the most convincing cases which are relevant to the case at hand. For example, the case of Carlill V Carbolic Smoke Ball Co (1893) can be used to back up argument on what amounts to offer and acceptance.  Section 33-40 of the 1999 constitution of the federal republic of Nigeria may be used to support argument on fundamental human rights depending on the right being enforced. Authorities are also cited in legal writing in order to support a principle of law or to make it more convincing. Examples of legal writing include legal textbooks, law journals, periodicals, legal letters etc.

Legal writing is an art that should not be taken for granted. The importance of writing has been displayed in articles, letters, journals, agreements, essays, reports, court processes and so.on. These legal writings help researchers in their legal work. Writing is not an innate skill and thus, it has to be developed. A good legal writing should be accurate, brief, clear, orderly and original.

  1. Essay writing: it is a short piece of writing on a given subject that reflects the writer’s thoughts, opinions and view points on a particular matter. The different types of essay will be discussed below.
  2. Types of Essay Writing:
  • Descriptive Essay: it is used to present a picture of things or situations so that readers can appreciate them as if they had seen or experienced them. The aim of descriptive essay is for the writer to clearly describe what he has seen, felt or experienced. For example, if a student is tasked by his teacher to write an essay describing a crime scene. The student must be able to describe both the physical and abstract state of the scene in a way that readers can draw a mental picture of it as if they were there. Another example of a descriptive essay is where A is tasked by B, his tutor to explain A’s favourite movie and its impact on A.
  • Narrative Essay: it is the orderly or chronological presentation of events as they occurred. An example of narrative essay is when a student is tasked by his teacher to write on the constitutional development of Nigeria from 1922 to 1999.
  • Argumentative Essay: it is also known as opinion essay. A writer is expected to support or oppose a position in writing and convince or persuade the readers to accept his viewpoints. A good argumentative essay does not only rely on the writer’s thoughts or opinions but it also makes use of facts and evidences to support its claims. Examples are:

The Abolition of Death Penalty  –  to be or not to be

Legalization of Abortion in Nigeria  –  a shield or a sword.

  • Expository Essay: it explains, illustrates, clarifies or explicate something in a way that it becomes clear for readers. The purpose of the expository essay is to explain a topic in a logical and straightforward manner. An example of expository essay is where a student is expected to explain the concept of the rule of law or where a student is asked to write an essay explaining how the computer has changed the lives of students.

Although, these essays are classified for convenience sakes, the writer might be required to make use of two types of essay like using a bit of exposition in a narrative essay but it must be balanced.

 

  1. Methods and Approaches in Essay Writing
  2. Choosing a topic: sometimes writers are given a free hand to choose a topic of their choice but the problem is how to develop the topic chosen. The following are factors that should guide a writer in choosing a topic:
  • The writer should choose from a topic he can learn from which broadens the scope of the writer
  • The writer should choose a topic in which he can easily find source materials to develop the topic
  • The writer should make sure he searches for specific points instead of generalities so as not to lose focus.

A good topic must possess these attributes:

  • It is correct if it provides adequate information on a topic
  • It is complete if it is understandable to people in that field
  • It is concise if it is a short detailed piece of writing.

 

  1. Preliminary Reading: reading about a topic and conducting a research on it to put it into writing is very productive.

 

  1. Reviewing or Re-thinking a Topic: a writer is expected to think clearly and reflectively about a topic and ask questions which will be used to answer the essay.

 

  1. 4. Identifying the basic question: the writer must identify the basic question in order to be able to answer the essay.

 

  1. Formulating the Research problem or question: the writer will use his major points to answer the question

 

  1. Testing the Idea: the writer is expected to test if the idea relates to the topic. The following are the tests that can be used:

a.) writing test: the writer must choose his words carefully, read what he has written, revise and rearrange it

b.) credibility test: the writer’s idea must be plausible and must be able to stand the test of time,

c.) friendly colleague test: the writer must find someone to read and criticize his idea so that the writer will be able to know the points to keep or cut out.

d.) possibility test: can the writer meet the deadline?

 

  1. preparing the outline: outline helps in shaping the writer’s work. It is important before and after writing.

 

  1. 8. Choosing materials: to get appropriate materials for a quick research, the writer needs to be guided by the following factors:

a.) get only materials on the subject matter of the research

b.) get recently published materials

c.) get materials that are classic and of high standard

 

  1. Examining Your Sources: this is done in the following ways:

a.) by organizing reading time

b.) by reading selectively

c.) by reading responsibly

d.) by reading critically.

 

  1. Writing the Essay:

a.) First Draft: write extensively putting his idea into work without correcting anything

b.) Second Draft: revise the first draft and add points that have been missed

  1. c) Third Draft: minimize words and remove unnecessary repetitions of words

d.) Fourth Draft: address the content and structure of his works like the punctuation, grammer, paragraphs until he is satisfied with the writing.

HINTS AND SUGGESTIONS ON GOOD WRITING

  1. Introduction: it is the preface of the writer’s work. It is what keeps the readers glued to the story.
  2. Originality: although a writer gets his sources from other writer’s works, he must be careful not to plagiarize them and must write it in his own way.
  3. Clarity: the use of words, paragraphs and punctuation must be clear in the writing.
  4. Brevity: the writing must be precise and concise and must contain only important details
  5. Grammatical Expressions: a good writing contains good grammer, simile, metaphors and idioms which impresses the readers
  6. Accuracy: a good writing must contain accurate points in order not to mislead the reader
  7. Organization: a writer must organize his thoughts in his writing
  8. Mechanical Accuracy: a writer must try not to make mistakes in tenses, punctuations, spellings, capital letters, prepositions etc.
  9. Conclusion: it is the final sentence in your essay that summarizes the whole points and proffers solutions to problems.

 

 

  1. ii. Styles Of Writing: there is no strict rule about styles. It usually depends on whether the letter is meant to simply convey information or persuade the recipient to act or refrain from an act.

 

iii. Analysis Of Socio Legal Issues And Application Of Legal Rules:  an essay in legal writing must contribute to social, economic, political, cultural, educational issues and many more. It must picture problems and social realities in order to leave a good impression. When one is writing from the standpoint t of a legal mind, one must not ignore important details.

For example, when one wants to write about the menace of cultism in Nigeria, it would be a problem if it does not address the social, political, economic and psychological factors that may have caused it.

Pound’s approach to the application of legal rules to social matter was somewhat infertile. He sees legal rules as adjusting and reconciling conflicting interests. It simply means that law serves the interests of those that contribute to the good of the whole society. He recognizes the task of the lawyer as that of a social engineer who formulates a programme of action, attempts to gear individual and social needs to the valves of western democratic society.

 

  1. Division of topics into chapters, sections and subsections: in essay writing, there is need for a writer to break his work into chapters, sections and subsections for clarity, simplicity, orderliness and effectiveness.
  • Chapters: for example an essay or project topic on ‘’federalism in Nigerian state’’ may consists of the following characterizations.
  • Chapter one –           Concept of federalism
  • Chapter two –           Origin of the evolution of federalism in Nigeria
  • Chapter three –          Dimensions and overview of federalism
  • Chapter four –        Future and prospects of federalism in Nigeria
  • Chapter five –        Conclusion and recommendations.
  • Sections: each chapter may be divided into sections to simplify the the writer’s outline. For example, if chapter two above has sections, it will look like these:
  • 1   Quasi Federal System In Macpherson Constitution 1951
  • 2 Federalism Under The Lyttleton Constitution 1954
  • 3 Federal System Under The Military Rule 1966 – 1979
  • 4 Nigerian Federalism in the 1999 constitution
  • Federal principle and 1999 constitution
  • Subsection: a section of a chapter can also be divided into a subsection. For example, Section 2.5 may be divided into subsection 2.5.1.

The form which it takes all depends on the project writer.

A statute can also be divided into chapters, sections and sub sections e.g the Nigerian 1999 constitution.