SOURCES OF LAW

1.0. INTRODUCTION

The term “source of law” is used in various senses. In the first place, it means the ultimate origin

of the whole body of a legal system, the origin from which the system derives its validity: the

electorate or voters, a special body the general will or the will of a dictator. Secondly, the term

source of law is used to name the historical origin of a rule of law. For instance, the common law

is a historical source of English law, for the origin of many rules of English law is traceable to

the common law.

2.0. OBJECTIVE

At the end of this unit, you should be able to:

(i) Define the term” source of law”.

(ii) Identify various sources of law;

(iii) Distinguish between statutory source of law and judicial source of law.

3.0 MAIN BODY

3.1 Primary source

The primary source of law is the Nigerian Legislation and Statutes. This consists of other statutes

and subsidiary legislations. Statutes are laws made by the legislator or a body so duly constituted

and authorized to enact laws; while subsidiary legislations are also known as delegated

legislations or statutory instruments and are usually entrusted to Ministers or Commissioners.

The primary source of law consists of: Ordinances, Acts, Laws, Decrees and Edicts, depending
on the status of the issuing authority or the circumstances of the prevailing political situation.

Ordinances were laws passed by the Legislative body during the colonial era. In most cases, such

enactments were usually in the form of orders from the mother- country’s parliament and were

deemed to be applicable to the colonies concerned.

3.2 Statutory Materials

Statutory Laws are laws made by the legislatures. In Nigeria, Legislation constitutes the Act of

parliament of the National Assembly, which has power to make laws for the Federation, and the

State House of Assembly for each State of the Federation. The current legislation in force at the

federal level is largely contained in the Laws of the Federation of Nigeria 1990 (LFN). Laws

made after the 1990 law revision exercise of the federal laws are to be found in the Annual

Volumes of the Laws of the Federal Republic of Nigeria. Federal laws under the Military, known

as Decrees, and state laws, known as Edicts, form the bulk the primary legislation. Most of the

pre-1990 Decrees were incorporated into the LFN and those patently incompatible with the new

constitutional order were repealed on the eve of the inauguration of a new democratic

government in May 1999.

On the aspect of State House of Assembly, each of the 36 states and the Federal Capital Territory

(FCT) Abuja respectively, has its own laws. Some states have in recent times made some

changes in their laws and factored them in a compact and comprehensive form to facilitate easy

access. Legislation has been described as the most important source of Nigerian law. This is

partly because all other sources of Nigerian law are considered as such by virtue of a piece of

legislation or the other.

Statutory Laws include delegated legislation.

Delegated Legislation

Delegated legislation also called subsidiary legislation or statutory instrument is that which is

made under a delegated authority." It is the exercise of power to legislate by or under an Act of

Parliament to the Executives or other Administrative aut Section 18 of the Interpretation Act,

which gave various definitions of which instrument is one, defines it to mean any order, rules,

regulation, rules of court made either before or after the commencement of this Act in exercise of

powers by an Act. From the above definition, it is clear what amounts to delegated leg Nigeria.

The definition states clearly, the various forms that delegated legislation subsidiary bodies that

power can be delegated to includes the presiden ministers, commissioners, Administrative

agencies, professional bodies ete out these powers, these bodies act in every bit like the

parliament and m have the same force as laws made by the parliament 1 These legislation

legitimacy from Acts of Parliament and they can only be made where the provision in the

Primary Legislation to do so.

Apart from the above mentioned statutes, we also have delegated legisl legislation by some

administrative person, authority, body or agency, under a by the constitution or an enabling

statute permitting such administrative auth laws. Examples of administrative law makers or rule

makers include:
1. The President;

2. Governors;

3. Chief Justice of Nigeria¹ and Chief Judges of the states

4. Ministers,

5. Commissioners;

6. Government ministries;

7. Departments; and

8. Public corporations, agencies, statutory bodies and so forth.

Delegated legislation is a variant of rule making, and it has been the practice of Law making

bodies to delegate law making duties to legislative organs. The law emanating from such

delegation of powers is called delegated legislation. Delegated legislation can be defined as the

legislation by some persons or body of persons under statutory authority given to that person or

body of persons by statute. The empowering or enabling law has the same force as delegated or

subsidiary legislation.

3.2.1 Types of Delegated Legislation

i. Regulations: Administrative agencies and executive bodies often have the powers to

make legislation on matters of wide general importance. Regulations are made for

smooth running of the organization. Sometimes, the powers to make laws are

delegated by the Constitution. See section 148(1), section 193(1), etc.

 ii. Rules: The power to make rules may be delegated to executive organs as subsidiary

legislation under the primary act for prescription of procedure. For instance, see

section 46(3), which gives the Chief Justice of Nigeria the power to make rules in

respect of Justice administration and pursuant to that, he has made rules of court and

also, we have the Fundamental Human rights enforcement rules under which we have

rules relating to the enforcement of Human Rights.

iii. Order: This is usually employed to bring into effect some specific or general

intendment of the law. A good example is the power conferred on the appropriate

authority to, by order, make such modifications in the wordings of any existing law as

he or she considers expedient to bring that law into conformity with the provisions of

the constitution.

iv. Statutory instruments: This is used to generally denote exercise of rule making power

derived from an enabling statute.

v. Administrative Circular, directives and guidelines: They are usually employed by the

administration in order to ensure that discretionary powers vested in public authorities

may be exercised by officials in reasonably uniform and standardized manner.

vi. Bye-Laws: This has been defined as an laws affecting the public or some portion of

the Public. Most of the laws made by Local governments are bye-laws.

Anually, many statutes are passed by the legislative arms of the Federal and State government

and marry subsidiary legislations, especially, in the form of rules and regulations are made

pursuant to them by various public authorities and statutory bodies or agencies with such powers

have been to make delegated legislations.

Delegated legislation has become a part of the legal system in Nigeria. The legislature like

countries sees the need to delegate powers to the executive but, there are hardly anity for the

scrutiny of these legislations by the parliament before or after they are Also, unlike other

jurisdictions, there are no general pattern or procedure that are vn that can be followed for the

making of these legislations. The procedure to be used in each particular case largely depends on

the enabling law and this causes a lot ations between the different regulations that are made and

as such the safeguards in place re far too meagre to constitute an adequate control of delegated

legislation.

Generally, the delegation of law making powers can be traced to the Constitution. Section 4(6)

vests the legislative powers on the National Assembly and the State Houses ably respectively. 22

This power to make laws that reside with the legislative arm ever be delegated to another body

but the legislature must first lay down the e policy and principle and must afford guidance for

carrying out the policy before mes it to a subsidiary body, 23 Section 27(1) of the Interpretation

Act underscores this fact.

REASONS FOR DELEGATED LEGISLATION

1. It reduces Parliamentary Workload.

2. It enables Experts to legislate on technical Matters.

3. It saves the time of the Parliament/National Assembly.

4. It saves cost for the National Assembly.

5. It allows for flexibility in Administration.

6. It brings Government nearer to the people.

7. It creates room for the making of laws that conform to local needs.

8. It enables quick response to a State of Emergency,

ARGUMENTS AGAINST DELEGATED LEGISLATION

1. It is contrary to the doctrine of separation of powers, especially when people other than

parliament members are empowered to make laws.

2. It reduces the Supremacy of the Legislature/Parliament.

3. It is undemocratic and therefore, prone to abuse.

4. It is a violation of the Rule of Law,

5. Control of delegated legislation is inadequate.

6. It encourages arbitrariness and dictatorship.

7. There is lack of sufficient consultation.

8. Inadequate publicity of delegated legislation.

9. Inadequate consideration of the impact of delegated legislation.

10. Administrative lawmakers end up having too much power and discretion.

11. Emergency Regulations often infringe civil liberties

THE RULE AGAINST SUB-DELEGATION

1. The general rule is that a delegate cannot sub-delegate his functions and powers. As a matter

of fact, a delegate cannot delegate. The latin maxim' delegatus non potest delegare 'means that a

delegate cannot delegate his functions unless he is otherwise authorised or permitted to do so.

This is especially where he is required to personally perform the delegated function or exercise

the power concerned. See A.G Bendel State v. A-G Federation & 220rs" where the Supreme

Court held that the National Assembly cannot delegate its law making function to a Joint

Committee of the National Assembly.

2. Power or duties that involve the exercise of discretion cannot be delegated.

3. Judicial or quasi-judicial powers cannot be delegated. See Barnard & Ors. V. National Dock

Labour Boar.

4. Power to declare war cannot be delegated.

5 Power to impeach cannot be delegated.

6. Power to create new States cannot be delegated.

3.2.2 Statutory materials as source of laws include statutes like
1. The 1999 Constitution (as Amended)
2. The Criminal Code 1916
3. Land Use Act 1978
4. The Federal Competition and Consumer Protection Act 2018
5. The Company and Allied Matters Act 2020
6. Child Rights Act 2023
7. Violence Against Persons Act 2015
8. Cybercrime ( Prohibition and Prevention) Act 2015
9. Sale of Goods Act 1893

3.3 Judicial Material

Judicial precedent is a source of law. Judicial precedent or case law consists of laws found in

judicial decisions. A judicial precedent is the principle of law on which a judicial decision is

based. It is the ratio decidendi or the reason for the decision. Other judicial material includes the

Nigerian Law Reports. Nigerian law reports are reports of cases, wherever published or edited,

decided by Nigerian courts. They include English law reports containing decisions of the Judicial

Committee of the Privy Council given on appeal from Nigeria, a number of local and foreign

periodicals containing case reports and various reports including loose-sheet (unbound) series.

Equity

The formulation or formation of equity, was started first by the king of England, followed by the

Attorney General of Dengland, and the judges of the Court of Chancery completed the formation

of equity. Thus, equity is a judge made law. Equity or the principles and maxims of equity were

mainly made by the judges of the Court of Chancery, and it was then used to smooten the
hardships of the common law. Finally, equity and statute law were used to make the English law

a more complete system of law

INTERNATIONAL LAW

International law is a source of Nigerian law. International law is part of Nigerian Law,

especially when such international law has been domesticated in Nigerna, as part of Nigeran

municipal law or local law, as required by section 12(1) of the 1999 Constitution. Thus,

international law is a source of Nigerian law, just like it is a source of law in many countries.

3.4 Reasons for Studying Sources of Law

1. It affords an understanding of the various means by which the law governing the society is

made or through which it comes into existence, e.g. through formal Legislative processes in

parliament or through judicial precedents

2. It affords the means by which authoritative written materials are derived. This constitutes the

literary source such as are represented by the statute books and the various compilations of the

annual laws and the statutes in force including textbooks and monographs, with which a lawyer

should be thoroughly familiar.

3. The study of the sources of law facilitates an understanding of the process by which law

derives its validity. This refers to formal sources of law such as reflected in the constitution of a

country and the activities of enacting bodies like the National Assembly.

4. A mastery of the sources of law of a given society also enhances an understanding of the

historical factors that have influenced the evolution of the laws to such a direction as it had
taken. By delving into such historical sources, it may be possible to trace the nature and content

of the law with a view to arriving at the stuff of which the law was made. For instance:

(i) The historical fact that it is difficult, if not really impracticable to divest customary law and

Islamic law from the culture, religion and traditions of the people.

(ii) Similarly, by mere fact of history that Nigeria, for example, evolved from a unitary state to a

federal state under a colonial domination, which spanned over a hundred years.

(iii) The consequence of the great impact of English law on The Nigeria Legal System.

(iv) The fact of the multi-ethnic structure and political heterogeneity resulting in the plurality of

laws and the concomitant complex legal system; (v) The resultant proliferation of court to cater

for the various dimensions exhibited in the ensuing polity.

4.0 CONCLUSION

The source of law means the origin from which the system derives its validity, be it the

electorate, a special body, the general will or the will of a dictator. It also means the historical

origin of a rule of law. Statutes books, law reports and textbooks are sources of law in any legal

system. Examples of legal sources of law are legislation and judicial precedents. 5.0

ASSIGNMENT

1. Discuss briefly on legislation and statutes as the primary source of law.

2. Apart from the statutory materials listed above, name other statutory materials known to

you.

3. Discuss briefly what you understand by judicial material as a source of law.

4. Discus in detail why you think it is important or necessary to study the source of law of a

given society