The ‘ASS’ In Some Of Our Nigerian Laws

By Hameed Ajibola Jimoh Esq

I have observed some of our Nigerian laws that when considered in their application, they can be presumed to be ‘an ass’. Take for instance, when an Applicant/Plaintiff or Respondent/Defendant secures judgment in a court of law, especially against the Government, then, the Sheriff and Civil Process Act, 2004 (which is an Act being in force since 1945 (which is since 75 years a go) but has remained applicable till date despite several laws made thereafter), requires such person to seek the consent of the Attorney-General of the Federation or of the State (where applicable). See: section 84 of the Act (if not only of recent that some of our courts have been departing from this application and setting a new path for its application). This provision of the Act is no doubt a proof that such provision of the Act is ‘an ass’! How reasonable would it be that a successful party would still be at the mercy of his opponent?! Where on earth would such be a form of justice?! This is just one of those laws that shows the ‘ass’ in some of Nigerian laws which require immediate reform should ‘justice’ be the overriding interest of government, hence, this paper! The clause ‘the law is an ass…’ is commonly said since time immemorial!

According to my research on https://www.goodreads.com/quotes/22816-it-was-all-mrs-bumble-she-would-do-it-urged,, Charles Dickens > Quotes > Quotable Quote, the clause was quoted as follows

 “It was all Mrs. Bumble. She would do it,” urged Mr. Bumble; first looking round, to ascertain that his partner had left the room.

That is no excuse,” returned Mr. Brownlow. “You were present on the occasion of the destruction of these trinkets, and, indeed, are the more guilty of the two, in the eye of the law; for the law supposes that your wife acts under your direction.”

If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass — a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.” ― Charles Dickens, Oliver Twist. (Underlined words are mine for emphasis).

Furthermore, according to a research on https://dictionary.cambridge.org/dictionary/english/law-is-an-ass the clause was explained as follows

‘The legal system or a particular law is wrong or not good enough, and should be changed:

If that is against the law, then the law is an ass.’

From the above meanings of the words ‘the law is an ass’ as depicted and publicized in the well celebrated literature ‘Oliver Twist’, it is such a situation where the application of the law as it is would likely result in absurdity or in other words when the interest of justice is concerned, strict application of such law enacted to a particular circumstance would result in miscarriage of justice or where the application of the law in strictness would lead to unimaginable injustice when such matters or cases are brought before a court of law to decide. I am of the respectful view and recommendation that all these laws should be outlined and be recommended for immediate reform and the court of law in any of such instances or circumstances, whether civil or criminal cases, must utilize its discretion where it has to ensure that the interest of justice or the justice in the case prevails. Even where the court (ably symbolized by the Honourable the Presiding trial judge or the appellate court) is not conferred with discretion, the court having considered the interest of justice in a case, should consider devising judicial activism in order to arrive at that which is just, fair and or reasonable in the circumstance, rather than strictly applying the law as it is which according to the judgment or reasoning of the court, is likely to lead to miscarriage of justice. This is a rudimentary or primary role that I view that a court of law should be concerned with. Laws are made by man and man enforces the same law. So, there should be a certain risk bearing in the application and enforcement of the law. Law enforcement agencies that are to enforce the law too should consider justice in the enforcement of the law, else, an ordinary man in the society should not seek self-help or jungle justice as substitute for justice! The fear which I have is that ‘if the common man should see law as ‘an ass’ or ‘unconscionable’ or ‘idiot’ i.e. lacking mental reasoning just as it was depicted in the above quoted words extracted from the literature ‘Oliver Twist’, then, that common man in the society would likely avoid the court of law and also bypass the law and make his own law (without considering whether his act and or omission is lawful or unlawful or rational or irrational)’.

Section 6 (1), (2) and (6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution-, has conferred judicial roles (and discretion) on the court of law as follows

‘6.—(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation.

(2) The judicial powers of a State shall be vested in the courts to which this section relates, being courts established, subject as provided by this Constitution for a State.

 (6) The judicial powers vested in accordance with the foregoing provisions of this section—

(a) shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law ;

(b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person ;

(c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in Chapter II of this Consitution ; and

(d) shall not as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.’.

Furthermore, the Nigerian National Assembly has enacted an Act known as the Nigerian Law Reform Act- now 2010 (as amended). The Act is by its Long title, ‘An Act to set up a Law Reform Commission for Nigeria to undertake the progressive development and reform of substantive and procedural law applicable in Nigeria by way of codification, elimination of anomalous or obsolete laws and general simplification of the law in accordance with general directions issued by the Government, from time to time and for matters connected therewith’. The Act in section 1 establishes the Nigerian Law Reform Commission which shall be a body corporate with perpetual succession and a common seal and may hold, acquire and dispose of any property or interest in property, movable and immovable.

The Act provides for the functions of the Commission in section 5 thus ‘ (1)  Subject to the following provisions of this section, it shall be the duty of the Commission generally to take and keep under review all Federal laws with a view to their systematic and progressive development and reform in consonance with the prevailing norms of Nigerian society including, in particular, the codification of such laws, the elimination of anomalies, the repeal of obsolete, spent and unnecessary enactments, the reduction in number of separate enactments, the reform of procedural laws in consonance with changes in the machinery of the administration of justice and generally the simplification and modernisation of the law. (2) For the purposes of subsection (1) of this section, the Commission- (a) shall receive and consider any proposals for the reform of the law which may be made or referred to it by the Attorney-General of the Federation (in this Act referred to as “the Attorney-General”); (a) may prepare on its own initiative and submit to the Attorney-General, from time to time, programmes for the examination of different branches of the law with a view to reform; (b) shall undertake, pursuant to any recommendations approved by the Attorney-General, the examination of particular branches of the law and the formulation, by means of draft legislation or otherwise, of proposals for reform therein; (c) shall prepare, from time to time, at the request of the Attorney-General, comprehensive programmes of consolidation and statute law revision, and undertake the preparation of draft legislation pursuant to any such programme approved by the Attorney-General; (d) may provide advice and information to Federal Government departments and other authorities or bodies concerned, at the instance of the Federal Government, with proposals for the reform or amendment of any branch of the law. (3) The Attorney-General may- (a) modify the terms of a reference; and (b) give directions to the Commission as to the order in which it is to deal with references. (4) For the purpose of the efficient performance of its functions under this Act, the Commission may, from time to time, obtain such information as to the legal systems of other countries as appears to it likely to facilitate the performance of any such function. (5) The Commission may conduct such seminars and, where appropriate, hold such public sittings concerning any programme for law reform as it may consider necessary from time to time. (6) The Attorney-General shall lay before the President any programmes prepared by the Commission and any proposals for reform formulated by the Commission pursuant to such programmes (7) Notwithstanding the foregoing provisions, the Commission shall be autonomous in its day-to-day operations. (8) For the purposes of subsection (1) of this section “Federal laws” means all laws within the legislative competence of the Government of the Federation and includes all received law and rules of law in force in the Federation and having effect as if enacted by the Federal legislature and all procedural laws and all subsidiary instruments made under or pursuant to any such law.

Also, the Nigerian Institute of Advanced Legal Studies Act 2010 (as amended) is another body to consider in the need for law reform of Nigerian laws. See its Long title. Also by section 1, establishes the Nigerian Institute of Advanced Legal Studies to carry out the following functions ‘ (a) to provide information, supervision, guidance and advice to post-graduate students and other researchers who are working for post-graduate degree of any University in the field of law and related subjects; (b) to conduct research into any branch of the law or related subjects with a view to the application of the results thereof in the interest of Nigeria; (c) to conduct courses of instruction in legislative drafting leading to the award of post-graduate diploma or a post-graduate degree; (d) from time to time to organise, host, arrange and conduct national or international seminars, symposia, conferences, workshops, lectures on any branch of the law or related subject; (e) to prepare and publish books, records, reports, journals as may seem desirable for the dissemination of research findings, seminars,  symposia, conferences, findings of workshops and lectures as aforesaid; (f) to co-operate with Nigerian universities, the Nigerian Law School, the Nigerian Law Reform Commission and such other bodies (whether in Nigeria or elsewhere) engaged in any major field relating to law reform, development or research in the mobilisation of Nigeria’s research potentials for the task of national development and dissemination of research findings for the use of policy makers at all levels; (g) to carry out other activities as are necessary and expedient for the full discharge of any of its functions under or pursuant to this Act’.

However, it is very unfortunate that despite the good provisions in the above Acts on research and reform of Nigerian Laws, there are still some if not many of these Nigerian laws (either of the Federal or the State) that require immediate reform.

Furthermore, in our various legislations of the Federation or the State, there are some legislations that really need reform. Some laws have been in existent for so long that some of their provisions do not serve the present situation.

Finally, the authority in charge of law reform are called upon by this paper to review these laws. The National Assembly also has roles and or power to play in repealing some of these obsolete legislations as conferred upon it by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Email: hameed_ajibola@yahoo.com