THE INTERPLAY OF LEGAL SOURCES: AN EXAMINATION OF THE CONVERGENCE AND DIVERGENCE OF FORMAL AND MATERIAL SOURCES

 THE INTERPLAY OF LEGAL SOURCES: AN EXAMINATION OF THE CONVERGENCE AND DIVERGENCE OF FORMAL AND MATERIAL SOURCES

Odetunde Divine-Favour

University of Lagos

 

INTRODUCTION:

 

Law, as an abstract term, is by definition a system of rules and principles that govern human behavior and relations. As such, it cannot exist without sources from which these rules and principles are derived. Legal sources are the foundation upon which the entire edifice of law is built , and their interactions and interplay shape the evolution and development of legal system over time. Whether it be the decree of a monarch, the consensus of a community , or the reasoned decision of a court,every legal norm must have a source from which it derives its authority. These sources of law can be further divided into  Formal and Material sources. In the light of the aforementioned context , this essay beautifully captures the convergence and divergence of Formal and Material sources in shaping the evolution of our legal system. 

 

DEFINITION OF SOURCES OF Law. 

According to OBILADE sources of law refers to the fountain of authority for a legal rule. In the same vein, Abiola Sannidescribes it as the materials through which a legal practitioner would find reliable authorities for a particular legal question. As mentioned earlier, sources of law can further be divided into Formal sources and Material sources. 

 

Firstly, the formal source refers to the origin of legality, validity or authority for a legal rule. It includes: The 1999 constitutional, Nigeria local legislations, Judicial precedent, Customary law/Islamic law, International laws and case laws. 

 

Secondly, The material sources of law refers to the documents containing the rule of law. It can be categorized into Primary material source and secondary material source. 

 

The primary material source refers to the law itself ( The materials containing the law itself). Instances are statute books, statute revised, law reports etc.  While the secondary material source refers to the opinion , criticism, discussion, review and comments on the primary material source ( the law). It's the ignorant researcher's first recourse to confirming the validity of a rule of law. It enables ignorant researchers to be able to locate, understand, interpret and discuss the material source of law. Examples are law journals, newspapers, textbooks, digest etc. It suffices to state that secondary material source can only be of persuasive effect in a Court. Hence, secondary sources are not binding or authoritative. It can be deduced from the foregoing that secondary material sources can be mainly used to dispel ambiguities in primary material sources and used for research purpose in the legal system.

 

ITEMIZING FORMAL SOURCE AND PRIMARY MATERIAL SOURCE. 

 

It's imperative to state that each formal source has its peculiar material source whether it be primary or secondary material. Hence , this segment of this article will be dedicated to highlighting each formal source and their primary and material sources.

Primarily, the superior Formal source of law is the 1999 constitution which is the grund norm of the Nigerian Legal system. Also, Nigeria local legislation is another example of a formal source of law, this refers to laws validly made by the legislative arm of government in respect to the legislative authority conferred on it by the constitution. Having discussed lucidly the constitution as a formal source of law, it is high time we discussed it’s primary sources which include : common law, Acts of parliament, Judicial precedents and so on. Similarly, local legislations also, has its primary sources which includes: laws of various states e.g Lagos state traffic laws etc,  

 

As mentioned above, Judicial precedent is also a Formal source  is the source of law and it refers to a previous decision set by a court, which can be reversed only by a higher court.   Precedent is based upon the principle of stare decisis et non quieta moveremore commonly referred to as ' stare decisis' ' meaning to stand by decided matters" They are commonly referred to as case laws or stare decisis. Their primary material source refers to law reports but electronic and physical. Case index , case digest , textbooks are instances of Judicial precedent secondary source material. 

 

Additionally, another Formal source to be elucidated upon is Customary / Islamic laws. Customary law is the law that captures the norms , traditions and rules of behavior of the people. It's the law propelled by the world view , beliefs , philosophies and value system of the people. While Islamic law refers to the diverse legal systems that have been and continue to be produced with the objective of being in accord with the Islamic faith. Material sources include law reports , textbooks , journals,etc. 

 

Furthermore,  English law as Formal source consists of : a) Received English law comprising; the common law , the doctrine of equity and the statutes of general application (SOGA) in force in England on January 1st 1900. (B) English law made before oct 1st 1960 and extending to Nigeria. Specifically , received English laws refers to the rules of law and legal principle that have their root in England and were adopted into the legal system to form Nigerian law . It is worth noting that English statutes may be incorporated into Nigerian laws on subject matter basis , without limiting date ,usually on procedure, probate choice of jurisdiction rules.For instance in the case of Agunane v N.T.C (1995) the decision of Kutigi JSC presuppose that the doctrine of common law employment in 1945 , although after the stipulated date for received English laws- 1900 , can still be regarded as received English laws without the limiting date if it was formally enacted in Northern legislation.

Primary material source includes: statue revised ,law reports. Secondary material sources are : law digest  textbooks etc.

 

Another distinct formal source is the international laws; it's a set of rules and principles governing the relations and conduct of sovereign states with each other , as well as with the international organizations and individuals. However , it suffices to state that international laws can only be in force in Nigeria when it has been domesticated because Nigeria operates a monist system of government. Examples of international laws include child rights acts, African charter on Human and people's rights. Primary material source includes Treaties , laws of federation (when domesticated). While secondary material sources include law journals , newspapers etc. 

 

EXAMINATION OF THE CONVERGENCE AND DIVERGENCE OF SOURCES OF LAW

In common law systems, the convergence and divergence of legal sources is inevitable due to the interconnectedness and dynamic nature of various legal systems and their source. This overlap and conflict occurs when the validity of a rule stems from multiple sources. As noted by Farrar and Dugdale, this convergence and divergence is a key feature of UK law and other common law jurisdictions. While it contributes to an adaptable legal system, it also requires careful management of potential conflicts or inconsistencies between sources to ensure effective application of the law. Hence , this section of this article will be dedicated to identifying and elucidating on different forms of overlap and conflicts in the Nigerian legal system. 

 

Thus, primary record source may incorporate or adopt another Formal source by reverence or even enact. For instance , Statutes ( primary source) domesticating international laws ( Formal source). This proposition is further buttressed in Section 12(1) of the 1999 constitution  " No treaty between the federation and any other country shall have the force of the law to the extent to which any such treaty has been enacted into law by the national assembly” This provision was applied in the case of Abacha V Fawehinmi .

In addition to this, a statute ( primary source) may enact customary or common law, an example to this is criminalization of adultery under the Islamic northern legislation according to Section 387 and 388 of the penal code. Similarly, treaties (primary source) may enact international custom ( Formal source) e.g United Nations custom on restrictive immunity codified in United Nations convention on Jurisdictional immunity of states and their property. 

 

Another distinctive form of overlap is that one formal success may buttress another. For instance , common law adopted or enacted by stare decisis . This proposition can be seen in the case of Adetoun oladeji V Nigeria Breweries. Also , customs can be confirmed by stare decisis. E.g Benin Igi-Ogbe custom confirmed and applied in Lawal osula v Lawal osula. Section of statute construed by Judicial decision , for instance Section 285(6) of the 1999 constitution construed in Senator John Akpanudoedehe v Godswillobot Akpabio

 

Having considered the convergence i.e overlap of  the sources of law , it's quite essential to consider some of it's divergence i.e conflicts. When sources conflict ( where they can) in such a way that no restrained or enlightened interpretation can reconcile them , one must give way for the other. The order of superiority of law will be discussed succinctly in the subsequent paragraphs. The Constitution of the Federal Republic of Nigeria being the grund norm overrides all sources. As well as Local legislations overriding other sources. This principle can be found in UTB V Koleosho , LAKANMi V AG, AG Ogun  V AG AGBA. In the order of hierarchy, Federal statutes covering same field overrides state This is also known as the doctrine of covering the same field and pertains to matters in the concurrent list since state legislatures cannot exercise any legislative authority with respect to item in the exclusive legislative list. In Attorney General of Lagos state V EKO hotels,it was held that since the VAT Act ,an enactment of the Federal assembly had covered the field on the issue of sales tax; it must prevail over the sales tax law of Lagos state. 

 

In conclusion, having examined the convergence and divergence of legal sources  it's noteworthy to state that the overlap and conflict of legal sources are common in a dynamic legal system. It is this convergence and divergence that makes and breaks our legal system and while this can create challenges, using established legal principles as discussed above to address these issues ensures a robust and adaptable legal system, thereby managing the complexities of overlapping and conflicting sources, this is essential for maintaining an effective and equitable legal framework in a society.