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7 Aug 2017

August 07, 2017

THE VIEW OF THE NIGERIAN CONSTITUTION ON THE LEGISLATURE



The legislature is the representative of the people. This is because it is elected by the people from all areas of the country. The primary functions of the legislature is to make laws. These bills are usually private or public bills, but most of the bills usually originate from the executive. The house of representatives is made up of 360 members while the senate has 109 members as provided for in SS.48 & 49 CFRN 1999 as amended.. Together they are referred to as the national assembly as provided in S.4(1). Their primary function is to make laws for the peace, order and good government of the federation in relation to matters in the exclusive list as provided in S.4(2). The national assembly also has the power to legislate on items in the concurrent list as provided for in S.4(4)(a) of the constitution. However, in doing this, the security and welfare of the people shall be the primary focus. S.14(2)(b).

OVERSIGHT FUNCTIONS OF THE LEGISLATURE
In order to carry out its functions effectively, the members of the legislature are usually divided into standing or ad hoc committees. S.62 CFRN 1999, empowers the legislature to create committees as may seem appropriate to it. However, they cant directly delegate the power of legislation to these committees. see AG Bendel vs AG federation; S.62(4) CFRN 1999. The purpose of these committees is to facilitate the carrying out of oversight functions of the legislature. The purpose of oversight functions is to ensure that acts of the national assembly are well implemented. This includes the appropriation act.

What then is the meaning of oversight? Oversight has been defined by Olezek as the continuing reviewing by the legislature of how effectively the executive branch is carrying out the legislative mandate. Unlike the parliamentary system of government, there is no ‘question time in the presidential system. This then makes oversight imperative in a presidential system of government.

It is argued in some quarters that the source of this power of oversight is contained in S.88 of the constitution. This is the section of the constitution that confers investigative powers on the legislature. However opposing this view is the opinion that the powers of oversight are broader than just investigation. Even if they are not stated in the constitution they will be inherent. This is due to the fact that pursuant to S.80 and S.81, it is the legislature that is in custody of the revenue of the federation and they are the ones to approve the budget of the federation. Therefore, since they are the custodian of revenue, it is inherent on them to ensure that the money is well utilised.

Another example of oversight of the executive by the legislature is the fact that it is the legislature that usually confirms the appointment of ministers and other officials of the federation. This is contained under S.147(2) CFRN 1999 where ministers have to be confirmed by the senate. Also, impeachment of the chief executive as contained in S.143 of the constitution can also be regarded as oversight function.
The mode of carrying out law making functions in general is contained in SS.58 & 59 CFRN 1999 (as amended) while it is S.100 for the houses of assembly. All other function of the legislature apart from law making can be categorised into oversight functions. Some of them include: being in charge of the public purse; S.80 to 84 CFRN 1999, the power of removal of the chief executive which is contained in S.143 for the president and s.188 for the governor.

WHY THE LEGISLATURE HAS OVERSIGHT FUNCTIONS
  •  To prevent the arbitrary use of public fund by the executive as provided in S.80 to S.84 of the constitution.
  •  To foster executive accountability.
  •  It helps to strengthen democracy. This is due to the fact that exercise of oversight functions keeps the executive on their toes.
  •  It helps to ensure effectiveness by the executive as they know that they are being overseen by the legislature.
  •  Expose corruption, inefficiency or waste in the execution and administration of laws propounded by it or the appropriation fund as provided in S.88(2)(b).
WHY OVERSIGHT FUNCTION ISN’T EFFECTIVE IN NIGERIA.
S.14(2)(b) CFRN 1999 provides that the security and welfare of the people shall be the primary purpose of government. However, with the way Nigeria is, it would be doubtful to conclude that this provision has been followed. One of the reason for this could be said to be the failure of oversight functions by the legislature. The following are some of the reasons why oversight function isn’t effective in Nigeria:
  • Ethnic loyalty: Legislators who belong a particular ethnic affiliation are usually reluctant to indict members of the executive who belong to the same ethnic group as they are. This is due the fact that the legislators put their ethnic interests before national interests.
  • Partisan Loyalty: As is the case with ethnic loyalty, so it is with partisan loyalty. Legislators of a particular political party are reluctant to also indict executives of the same partisan affiliation as them.
  • Lack of solid legislative framework for oversight: Whenever oversight functions are carried out, most often that not, the legislature would pass a resolution to that effect. However,it should be noted that resolutions could be ignored by the executive. Thus it would be best if there were legislation making it mandatory for the executive to respond to resolutions and to give reasons for not implementing them.
  • Docile citizenry: The citizens of Nigeria have the power under S.69 & S.110 of the constitution to recall representatives who they feel are not performing. However, this power is hardly made use of. Thus the legislators become lukewarm to their oversight functions.


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4 Aug 2017

August 04, 2017

HIERARCHY OF COURTS



The hierarchy of courts is the arrangement of courts in the method through which appeal flows. If the judgement at the lower court is not satisfying, an appeal can be made to the higher court in order to get redress and justice. I would highlight the courts starting from the lowest.
Magistrate or District Courts
This is just a single court, it transforms to a magistrate court in the hearing of a criminal case while in the hearing of a civil case it becomes a district court. These are courts that are regarded as courts of inferior jurisdiction. There are two adduced reasons for this. Firstly, it is not listed among the courts in S.6(5)(a) – (i) of the 1999 Constitution. And section S.6(3) provides that the courts that are mentioned in the previous section are courts of superior record. By implication, courts that are not mentioned are courts of inferior record. The second reason for this is that they cannot punish contempt ex facci curria.
The decisions of magistrate courts are bound by decisions of the higher courts but their own decisions do not bind any court. Also, they are not bound any of their previous decisions.
The High Court/Sharia/Customary Court Of Appeal
Directly above the district/magistrate court, you would find the High Courts, Customary Court of Appeal and Sharia Court of Appeal. Pursuant to S.6(5) of the 1999 Constitution, we have federal high court, state high court and the high court of the federal capital territory. Of these three, the state high court has the widest jurisdiction.   It should be noted that customary and sharia courts of appeal are not bound by judicial precedent. This is because they are not of common law origin. Also, they hear appeals on cases from the area courts, while the high court hears from the magistrate court.
These courts are referred to as courts of co-ordinate jurisdiction therefore; they are not bound by previous decisions of another high court. At best, the decision of another high court is persuasive on another high court. However, it is not expected for a high court to depart from another high court’s decision except in good cause.
A state high court, unlike the federal high court, has wider jurisdiction. In the provision of S.251 of the constitution, you would be able to see the limited jurisdiction placed on the Federal High Court. Thus, if a state high court makes a decision on a matter of federal application, it binds all magistrate courts in the country. If it makes a decision on matters of state application, it only binds courts of inferior jurisdiction in the state.
COURT OF APPEAL
Directly above the high court is the court of appeal. There is only one court of appeal in Nigeria but it has different divisions over the country. Thus, decisions by the court of appeal in Ilorin division is treated as its own decision in the court of appeal Lagos state. The question then is how does the court of appeal deal with judicial precedent?
It is trite that the court of appeal is bound by decisions of the supreme court. However, in dealing with decisions of a court of appeal in another division, the court of appeal is bound to an extent. In civil cases, it is bound by the decision of another court of appeal except in the situations provided for in the case of Young vs Bristol Aeroplane Co:
• If the decision is given per incuriam
• If there are two or more conflicting decisions of different courts of appeals, it can follow either of them or choose to follow none of them.
• When a decision of a court of appeal is in contrast with a decision of the Supreme Court.
However, in criminal matters, a court of appeal is not bound to follow the decisions of other courts of appeals. This is because of the very nature of criminal law in which each case should be treated on its merit. Strictly following a previous decision could lead to irreparable damage. This may be due to the fact that it is better for the court to set free 10 guilty persons than to convict a single innocent person.
THE SUPREME COURT
This is the highest court in the land and its decisions on any matter is final. Its decisions are binding on all courts throughout the country.
The Supreme Court is not bound by any previous decision of any court anywhere. However, it follows its previous decisions in order to maintain certainty and uniformity in the administration of justice. The Supreme Court may, however, choose to depart from its previous decisions in the following situation:
• If the previous decision is given per incuriam
• If following the previous decision would lead to substantial injustice.
• When a legislation nullifies the decision made in the previous judgement. see Bucknor Maclean vs Inlaks Nig Ltd [1980] where the court departed from its decision in two previous cases: Shell BP vs Jammal Engineering Ltd and Owumi vs Paterson Zochonis and co Ltd due to the fact that adherence to these precedents could lead to substantial injustice.
• If it is faced with two previous conflicting decisions of its own, it can choose to follow anyone.
In the case of Odi vs Osafile the court reasoned that the law was made for man and not man for the law. Also, man isn’t infallible and so are his thoughts. Therefore if it is pointed out that there has been a substantial error in a previous decision, the court should have the jurisdiction to correct that decision.



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August 04, 2017

A LEGAL PERSPECTIVE ON LAW AND MORALITY


As previously stated, any means of social control which is not backed by law can at best be said to be a moral rule. However, there is a two way relationship between the law and morality. Most laws evolve from moral principles over time, making morality a very important influence on the laws of a particular society.
This has made it paramount for the relationship between law and morality to be discussed. In doing this, the meaning of morality would be expounded, the relativity of morality would be highlighted and the relationship between personal liberty and public morals would also be highlighted.
Morality can be defined as the principles concerning right and wrong or good and bad behaviour. They are principles used to evaluate the degree to which something is right or wrong, good or bad. Morality is developed by the society over time in order to help check the activities of its members. A society without morals would be unfathomable. This is due to the fact that if a society is without morals, it would find it difficult to exist in the first place.
However, there is a problem inherent in morality. This is the problem of relativity of morality. What a particular society might consider as immoral might be considered as normal by others. For example, Islamic Law frowns on the charging of interests for loans. On the other hand, the charging of interest is considered perfectly normal by the Western world.
It is due to this problem of the relativity of morality that law comes in to play an important role. The purpose of the law here is to give the moral view of the predominant members of the society the backing of the law. Once a moral rule is backed up by the law, all members of the society have to conform or they would face the sanctions provided by the law. In most cases, the idea of morality supported by the law is that of the predominant group in the society.
For example, in some Countries, homosexual marriages are recognised by the law because those societies have a predominantly liberal population. In conservative societies like Nigeria, homosexual marriages have been criminalised.
Another issue to be considered is that of individual liberty and public morality. In some societies, indecent acts committed in private are not punishable. But when they are been displayed in public or are being advertised, it would be punished by the law. A good example of this is the case of Shaw vs Director of Public prosecutions (1962) AC 220.
In this case, Shaw had published a booklet called ‘The Ladies Directory’ which advertised prostitution. He was charged with conspiracy to corrupt public morals. The last time anyone had been prosecuted under this offence was in the 18th century. Shaw urged the court not to enforce the law because it was outdated. The court disagreed with him and subsequently convicted him.
The above case is an example of where the law protects morality. If that particular offence is subsequently removed by the legislature, corrupting public morality would only be a matter of morality not backed by law.
In conclusion, the above has gone ahead to establish the relationship between Morality and law. The two need each other as without morality, there would be no laws and without law, moral rules would not be binding on members of society.
SOURCE
O Sanni: Introduction to Nigerian Legal Method



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August 04, 2017

METHODS OF SOCIAL CONTROL THROUGH LAW

Before a society can be said to be sane, there have to be means by which that society regulates the conducts of its members. If everyone in a society is left to do as he wills, there might end up being no society. This is due to the fact that the absence of regulation would breed anarchy, making life “nasty, brutish and short”. It is due to this that every society has means by which it regulates the conduct of its members. This regulation of conduct is known as social control.
Methods of social control could either be formal or informal. Law is a formal method of social control while informal methods include ostracism, ridicule, gossip and censure.
What is going to be discussed is the formal method of social control. Thus, the methods of social control through law would be the focal point of this write-up.
According to Farrar and Dugdale, the following are the methods of social control through law:
  1. The Penal technique
  2. The grievance remedial technique
  3. The private arranging technique
        4. The constitutive technique
  1. The administrative regulatory technique.
  2. Fiscal technique.
  3. The conferral of social benefit technique
The above would be substantiated below:
THE PENAL TECHNIQUE
The word “penal” has been defined by the Black’s Law Dictionary 9th Edition as
“Of, or relating to, or being a penalty or punishment, especially for a crime”.
From the meaning of the word “penal” we can deduce that the penal technique is the one which involves the regulation of crime in the society. The penal technique is one in which the law pronounces some actions as prohibited and it provides punishment for engaging in such actions.
Thus, examples of laws in relation to the penal technique include the Criminal Code, Penal Code, Economic and Financial Crime Commission Act and so on. For instance, the Criminal Code in S.315 pronounces that murder and manslaughter are offences. It further provides in S.319 that the punishment for the crime of murder is death, while in S.325 it provides that the punishment for manslaughter is life imprisonment.
There are some alternatives to the penal technique which are: non-intervention, warning or caution, reciprocity and self-help, compounding.
Non-intervention occurs in a situation in which the act, although frowned upon, is not punished by the state. For example, in some societies, adultery is not a crime. In others, it is regarded as a crime. In the case of Aoko vs Fagbemi (1961) 1 ANLR 400, the court, while trying a case in southern Nigeria, held that adultery was not a crime since it wasn’t prescribed as such by a written law. Adultery is only a crime in the North due to the provision of S.387 of the Criminal Code.
Warning or caution occurs in a situation in which it is more expedient to warn the offender instead of punishing him. This occurs in the instance of juveniles and first offenders.
Reciprocity and self-help is a situation in which, instead of reporting a matter to the police, the aggrieved parties decide to mete out justice on their own. This could lead to jungle justice and could result in the punishment of innocent persons. This step is frowned upon by the law and thus, anyone who engages in this act, would be liable.
Compounding occurs in a situation in which, instead of prosecuting the crime, the aggrieved parties decide to settle it out of court upon the fulfilment of some conditions by the offender.
THE GRIEVANCE REMEDIAL TECHNIQUE
The grievance remedial technique, unlike the penal technique, is not related to criminal law. It deals with civil matters. It has been defined by Professor Summers as a technique which
“defines remediable grievances, specifies remedies … and provides for enforcement of remedial awards.”
What this means is that this technique provides for  instances in which a person would be held to have breached another’s right, it provides compensation and it also accounts for means for enforcing these compensations. The grievance remedial technique is used in areas of law like Law of Contract, Commercial Law, Law of Torts, Law of Property and so on.
Some of the remedies under this technique include: damages, specific performance, injunction, restitutio in integrum etc.
Alternatives to this technique include: the penal technique, private settlement, insurance and arbitration.
The penal technique could be regarded as an alternative to the grievance remedial technique due to the fact that a number of grievances are also regarded as crime. Examples include assault, battery, false imprisonment etc. Thus, when any of these grievances occur, the aggrieved party can choose to either pursue the case criminally or take a civil action.
Private settlement occurs in a situation in which the parties, at the time of the contract, have already spelt out means by which an aggrieved party should be compensated.
Insurance is relevant especially in developed economies. In these countries, when there is an injury suffered, like motor accidents, instead of suing, the aggrieved party(s) can decide to refer the matter to their insurance companies.
Arbitration occurs in a situation in which, instead of going to court, the parties decide to refer the matter to an arbitrator. The arbitrator is usually skilled in the area of business under issue. Arbitration is a more effective and less time consuming alternative. Arbitration processes could take days, compared to litigation which could take months or years before conclusion.
THE PRIVATE ARRANGING TECHNIQUE
This occurs in a situation in which the law doesn’t bind every member of the society. This particular law only binds those who choose to be bound by its provisions. An example of this is the Marriage Act which regulates legal marriages. A person has a right to either marry under the act, customarily or islamically. If he however chooses to marry under the Marriage Act, he has to abide by its provisions.
For example, the Marriage Act provides in S.47 that whoever contracts a customary marriage after contracting a marriage under the Act, such person would be liable for five years imprisonment. Thus, anyone who doesn’t subject himself to the provisions of this act, can decide to act contrary to it without any repercussions. But, for a person who decides to be governed by the Act, such person must abide by its provisions or face the music.
THE CONSTITUTIVE TECHNIQUE
The constitutive technique is the one that concerns itself with the formation of legal personalities. It encompasses all laws that deal with the registration of companies and organisations. An example of this law is the Company and Allied Matters Act which deals with the incorporation of companies in Nigeria. According to the provision of S.37 of the Company and Allied Matters Act, when a company is incorporated, it becomes a legal personality.
The concept of legal personality was established in the case of Salomon vs Salomon (1897) AC 22. In this case, Salmon incorporated Salomon & Co Ltd and he sold his leather making business to this company. The only shareholders were members of his family. Salomon borrowed the company he incorporated some amounts of money.
Subsequently, the company went into financial crises and it was to be determined who was to be paid first, Salomon, who was a secured creditor, or an outside creditor. If Salomon was paid first, there would be nothing to pay the outside creditors. The solicitors for the outside creditors argued that Salomon & Co ltd was a sham and was the same with Salomon. Salomon lost at the trial court and the court of appeal.
However, on appeal to the House of Lords, the decisions of the lower courts were reversed. The House of Lords held that Salomon co Ltd was a different person from Mr Salomon. Thus, since under normal circumstances, Mr Salomon was to be paid first, he should be paid first.
ADMINISTRATIVE REGULATORY TECHNIQUE
This method of social control is one in which the government, in order to protect the citizens, regulates the activities of private businesses. If there is no regulation, there is every likelihood that the capitalists would exploit the citizenry.
The government does this through the establishment of some regulatory agencies like the National Agency for Food and Drug Administration and Control (NAFDAC), the Nigerian Communications Commission (NCC), Standard Organisation of Nigeria(SON) and so on. For example, NAFDAC is established by the provision of S.1 of the National Agency for Food and Drug Administration and Control Act.
THE FISCAL TECHNIQUE
This method of social control involves the government using taxation to control the behaviour of citizens. For goods that the government wants to discourage, it imposes higher tax rates on them. It also involves the use of fines in order to discourage some actions. For example, in 1998, in order to reduce the rate of gas flaring the fine for gas flaring was increased by 1900 percent.
The government uses the fiscal method through the enactment of statutes like the Personal Income Tax Act and the Custom and Excise Management Act.
THE CONFERRAL OF SOCIAL BENEFIT TECHNIQUE
This occurs in a situation in which the government, through the instrumentality of the law, strives to provide basic amenities for the populace. It does this by establishing schools, hospitals, building roads and so on.
For example, the University of Ilorin was established by the provision of S.1 of the University of Ilorin Act. This Act provides the basis on which the administration of the university is operated. It can be seen as a way in which the government tries to make education available for the populace.
SOURCES
  1. Abiola Sanni: Introduction to Nigerian Legal Method
  2. John H Farar & Anthony Dugdale: Legal Method.
  3. Black’s Law Dictionary 9th
  4. Criminal Code Act
  5. Marriage Act
  6. Company and Allied Matters Act
  7. National Agency for Food and Drug Administration Control Act
  8. University of Ilorin Act.
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August 04, 2017

THE LEGAL PROBLEM SOLVING APPROACH OF LEGAL REASONING



The main purpose of studying legal method is to equip the law student with the right tools to enable him to think like a lawyer. This is what would be addressed by discussing legal reasoning. To understand it better, it would be best if the meaning of legal reasoning is expatiated upon.
The word “reasoning” has been defined by The Concise Oxford English Dictionary, 5th ed as:
“Thinking persuasively in a coordinated, orderly, sensible and logical manner”.
The Black’s Law Dictionary 9th ed further defines “legal” as:
“Of or relating to law; falling within the province of law”.
From the above definitions, one can deduce a definition of legal reasoning as the art of thinking persuasively in a coordinated, orderly, sensible and logical manner in relation to law. Legal reasoning simply concerns itself with learning how to think like a lawyer.
In order to fully understand legal reasoning, the language of the law would first be highlighted, there would be definition of some key terms and finally, the different methods of legal reasoning would be discussed.
THE LANGUAGE OF THE LAW
“Language” in this context doesn’t mean a whole new lingua franca. Rather, in considering the language of the law, I would be highlighting of some of the general characteristics of legal language. The following are the general features of legal language:
  1. Law is Expressed in General Terms: What this means is that when laws or legal provisions are worded, they are done in a way that would ensure that so much is covered by saying so little. Because the law deals with all aspects of life, it cannot afford to provide for only specific situations. Thus, it makes general provisions in most instances.
For example, the Criminal Code provides in S.317:
“A person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter”
This provision is general in the sense that if a person kills another unlawfully, and it is not murder, it would be regarded as manslaughter. It would be more awkward and time consuming if the statute had provided for the individual scenarios that would constitute manslaughter.
It should however be noted that the law could be specific in some instances. For example, the Constitution establishes in S.6 (1) that the judicial powers of the federation are vested in courts established by the constitution. The Constitution then further provides in S.6 (5):
This section relates to:-
(a) the Supreme Court of Nigeria;
(b) the Court of Appeal;
(c) the Federal High Court;
(d) the High Court of the Federal Capital Territory, Abuja;
(e) a High Court of a State
(f) the Sharia Court of Appeal of the Federal Capital Territory, Abuja;
(g) a Sharia Court of Appeal of a State;
(h) the Customary Court of Appeal of the Federal Capital Territory, Abuja;
(i) a Customary Court of Appeal of a State;
(j) such other courts as may be authorised by law to exercise jurisdiction on matters with respect to which the National Assembly may make
laws; and
(k) such other court as may be authorised by law to exercise jurisdiction at first instance or on appeal on matters with respect to which a House of Assembly may make laws.
The above provision specifically lists the various courts which the constitution was earlier referring to.
  1. The Use of Abstract Concepts: Lawyers are not allowed to use words anyhow. Unlike scientists who can give name to a new thing discovered, a lawyer is not allowed to formulate words that are not already in use. Thus, when a lawyer wishes to express himself accurately, he formulates legal concepts. An example of a legal concept is “rule of law”. These concepts usually contain deeper meanings than their literal interpretations. For example, the rule of law has three main components:
    1. Supremacy of the Law
    2. Equality before the Law
    3. Fundamental human rights.
  2. Other Remarkable Features of legal language: Legal language in addition to the above, has some other specific features. They are:
  • The use of common words with uncommon meanings. For example, instead of a lawyer to say “the court should hold that” he says “it is submitted”.
  • Legal language frequently uses Latin and French words like ultra vires, consensus ad idem, nemo dat quod non habet
  • Frequent use of archaic words like: hereinbefore, hereinafter, aforementioned etc.
  • The use of special vocabulary that is only understood by those in the profession. For example, a lawyer would say “my brief has not been perfected”, when he intends to say that he has not been paid.
  • Repetition of formal words like “the truth, the whole truth and nothing but the truth”.
The reason for this special language can be said to be a bid to mystify the profession in order for it not to be easily understood by the “layman”.

SOME KEY TERMS TO BE UNDERSTOOD
In order to better understand legal reasoning, there are some key terms that are to be understood. They are:
  1. Principles
  2. Rules
  3. Legal Rhetoric
They shall be subsequently explained below:
  1. Principles: A legal principle has been 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”.
Thus, legal principles act as the standard by which actions are to be judged in order to determine their legality and relevance. Any act or proposition that goes against a legal principle would be open to criticism and rejection by lawyers. An example of a legal principle is the principle of natural justice. If a lower court’s decision is made in violation of this principle, it is likely to be struck out on appeal.
  1. Rules: legal rules are the specific instances in which the legal principles would be applied. For instance, the principle of natural justice has the following rules:
    1. Audi alterem patem (hear the other side)
    2. Nemo judex in causa sua (You can’t be a judge in your own cause).
  2. Legal Rhetoric: Rhetoric is the act of seeking to persuade someone to accept your own opinion either through speech or writing. Rhetoric is very important for lawyers as their main business is usually to convince the judge that their cause should be favoured instead of the other party’s.
Legal rhetoric is achieved by appealing to authority.  Authorities are the sources of law that lawyers appeal to. They can either be primary or secondary. Primary authority include case laws and statutes while secondary authority include opinions, writings, legal commentaries etc. Primary authorities when quoted, are weightier than secondary ones. Thus, if the plaintiff backs up his arguments with primary authorities and the defendant back up his own with secondary authorities, judgement would be entered for the plaintiff.

METHODS OF LEGAL REASONING/LOGIC
The methods of legal reasoning are the rules of logic normally applied by lawyers in order to substantiate their arguments. Three methods of legal reasoning/logic are:
  1. Inductive reasoning
  2. Syllogism/ deductive reasoning
  3. Analogical reasoning
The above shall be expatiated below:
  1. Inductive Reasoning/Logic: Inductive reasoning is the one used by a lawyer if he supports his claim with judicial provisions. In this instance, the lawyer first states the court holdings in different cases, he then applies it to the case at hand. It is a form of moving from the specific to the general.
  2. Syllogism/Deductive Reasoning: This form of reasoning is used by a lawyer in most cases in which he uses statutes as authority. It is a form of logic in which the lawyer starts from a major premise, advances to a minor premise and then draws a conclusion. It is a form of reasoning from the general to the specific.
For example, in a situation in which a prosecutor want to secure a conviction for rape, he states:
  • It is provided in 357 of the Criminal Code that whoever has unlawful carnal knowledge of a woman without her consent is guilty of rape. (MAJOR PREMISE)
  • The accused had unlawful carnal knowledge of the complainant. (MINOR PREMISE)
  • The accused is thus liable for the offence of rape.(CONCLUSION)
  1. Analogical Reasoning: This occurs in a situation in which when using inductive reasoning, the points of similarity and differences between the different cases are pointed out. It is used by judges in order to determine if an authority cited is appropriate.
For example, the case of Carlill vs 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 that Carlill vs Carbolic Smokeball Co doesn’t have facts that concern the illegality of contracts.
SOURCES:
  1. O Sanni: Introduction to Nigerian Legal Method
  2. The Concise Oxford English Dictionary 5th Edition
  3. Black’s Law Dictionary 9th Edition
  4. Criminal Code Act
  5. The Constitution of the Federal Republic of Nigeria 1999 (as amended).
  6. John H Farar & Anthony Dugdale: Legal Method.


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