The history of the inception of English law into traditional society of Nigeria dates back into 1863, through the introduction of English law into the colony of Lagos, to the introduction of the English law came the introduction of English court, and where a court was empowered to administer the received law, provisions relating to its certification by the court as contained in the enactment creating the court and subsidiary legislation made under such enactment.
There however has been some vibrant argument as to whether English law was really received in former colonies including Nigeria. Writers have expressed some skepticism on the term “reception” in relation to the introduction of English law into the former colonies. Jill Cottrell was in no doubt that English law was received in countries of common wealth, saying rather humorously that the word “received” has often seem appropriate only as one might say “he received a blow on the head”. It can be inferred from Cottrell’s statement that although English law was received in common wealth countries there was no consensus ad idem between the colonist and the colonized as to the nature of its reception.
Park on the other hand defined reception generally as the introduction to one territory of the legal rules of another.
An enactment that is commonly referred to on general reception of English law to Nigeria is the interpretation Act. Section 45 of it has since been re-enacted in the law (miscellaneous provision) Act 1961and later section 32 of the Interpretation Act 1990.
The provisions of the original sections are as follows:
Common law can be defined as the law which is common and which was developed by the judges of the old common law court. The common law consists of the Court of Exchequer, court of common pleads or common bench, Kings court or King’s Bench and the Queen’s Bench.
These courts applied a uniform system of law common throughout England in contradiction with local laws.
Under the common law system, actions were commenced from the issue of the original writs. These original writs were documents obtained from administrative offices after payment. The main purpose of the writ was to ensure the presence of the defendant before the royal court. Also, this writ contained a brief statement of the plaintiffs’ ground of claim even though they were various kinds of writs which became stylized with certain types of misconducts having its appropriate writs. Hence, bringing an action at common law involves selecting the writ appropriate to the fact of the case. Failure to bring the case at hand under the appropriate writs necessitated that the plaintiff must fail.
Even though, writs have become stylized, other new writs were developed by the parliament and the administrative bodies of the court. However, later on, a practise emerged by which the court allowed new writs to be granted based upon the fact of the case and upon proof by the plaintiff of actual damage by the defendant. This inevitably led to the growth of the common law and the expansion of the register of writ.
From about 1250, the common law judges were becoming highly conservative in the development of common law. Hence, new writs were regarded as invalid.
This came to a peak in the Earl of Oxford’s case 1258 which provided that no new writ was to be issued without the consent of the King in council.
The statute of West Minster 1285 (statute in cosimili casu) however changed this trend. This statute gave the chancellor in chancery a limited power to invent new writ in a particular case and in cosimili casu falling under the like law and requiring like remedy where there was no writ, the clerks were authorised to issue new writ. The principal defect of the writ system was its formalism as the plaintiff had to find a writ to suit his case, if he chose the wrong writ, his claim would fail.
Another defect of the common law was that even the plaintiff obtained a suitable writ, he could be defeated by the influence of his opponent
There were also a number of defects inherent in the principles of common law which were not in the interest of administration of justice. In an effort to mitigate the hardship and error of common law, the doctrines of equity were developed by the court of chancery. The need for equity arose because the common law courts were not able to administer all the Justice required in litigation.
Equity generally has two meanings. The broad meaning which deals with equitable principles of Justice and Fairness. The other meaning attributed to equity is in the narrow sense which refers to technicalities involved in equity. Originally, equity was not regarded as part of law as in the case of Lord Dudlet and Ward V. Lady Dudley (1705) CH 241. _See also case of_ Allied Bank of Nigeria V. Legal Nigeria Limited (unreported case, suit NO: PHC/204/86, delivered on 17/12/1987)
Initially, conflict which arose in the application of the doctrines of equity by chancellor and common law judges who frowned upon the interface of equity with common law. Those conflicts were referred James 1 (King of England) and were resolved in favour of Equity. Thus, whenever a conflict arose between the common law rules and equitable principles, the rules of equity prevails. The Judicature Act (1873-1875) however fused the administration of the common law rules and equitable doctrines providing that in cases of conflict, Equity was to prevail.
It is worth mentioning that equitable principles are found only in judicial decisions although there are many equitable rules which have been incorporated into statutes. Principles of equity were applied only where there was no express statutory provision.
In most of the reception clauses except that of Western region, statute of general application that were in force in England on the 1st of Jan 1900 shall be in force within the jurisdiction, problems have arisen in determination of SOGA in Nigeria.
W.C Daniel was of the notion that the word “SOGA” are a slovenly expression made use of by the legislature to save itself of the trouble of explicitly declaring what the actual law of the colony shall be. There is as such a consensus as to the meaning of the phrase as the court does not successfully apply a single criterion or sets of criteria across board.
The case of AG V. John Holt and company, Osbond C.J attempted to determine what is SOGA with approval. In the case of Republic Land Ordinance and Exparte Joseph, he cited with approval:
Osbond C.J’s rough test has been subjected to many criticisms
Also, in the case of Ribeiro and Chanchin in which the same court held that common law procedure Act of 1852 was a SOGA.
Osbond C.J’s community test has also been criticized that there is no precise meaning of the word “community. According to A.E.W Park, it was not necessary for a statute to apply specifically to all persons in England before it can be regarded as a SOGA.
In the case of Labinjo V. Abake, it was held that the infant Relief Act of 1874 was a SOGA. In the case of Young V. Abina, the WACA also held that the Land Transfer Act of 1897 was a SOGA.
According to A.E.W Park, an act would qualify as SOGA if it applies either to all classes of the community or to all members of anyone or more classes.
It is appropriate here to mention that one important criterion for determining the SOGA is that if geographical generality of the statute i.e. if a statute is of geographical generality in England in terms not only of physical spread but by physical application. Some test has been introduced through the use of decided cases to aid in construing the meaning of SOGA;
“I think the court could be free to hold
that local circumstance do not permit
a statute to be in force ,if it produces the
result which were manifestly unreasonable
on contrary to the intention of the statute”
Case of Aliday v Alapatiri where Smith J held that the bankruptcy act of 1869 was not in force and its provision unheard of
Note that the section unequivocally or invariably introduce the English law in force “for the time being” Rather than that which existed at a specific date. This is in contrast with the Eastern region provision which received English on specific subject.
