LEGAL METHOD PAST QUESTION 2016|2017 FIRST SEMESTER
At the Ogbandide Local Government Area headquarters, an argument ensued between the Chairman and other Council members as to who should assume the position of the legal draftsman in the local government. The two candidates contesting are:
(a) A wealthy business man who is highly generous and
(b) A newly qualified legal practitioner.
Who in your opinion should occupy such a position and why bearing in mind those qualities which a legal draftsman must possess for effective and successful legislative drafting?
The newly qualified legal practitioner is in my opinion in the best position to handle the business of legal drafting. This is so because the drafting of bills requires a serious technical input or expertise by the legal draftsman. In the above question it appeared that the newly qualified legal practitioner had undergone the detailed techniques needed for effective and successful legislative drafting than a wealthy business man who had no training and skill for law making processes. However, who is usually a specialist in the field may be government employed or be in private legal practice. In this sense, it is universally recognized that the language of the law must pass some tests and avoid some common burdens imposed by the imperfections inherent in languages.
Be that as it may, the qualities which a legal draftsman must possess for effective and successful legislative drafting are:
1) He must have a natural flair for his career. Since legislative drafting is an art, a draftsman must be of such that he has natural flair for his career in law making.
2) As he is not free to draft without restraints, he must be of high intellectual competence
3) He must be highly imaginative, analytical and of a diagnostic mind.
4) He must possess a quick and retentive memory and the foresight of a sage.
5) He must be patient, sensitive, careful, flexible, and multi-dimensional as well as multi-disciplinary in perspective
6) He must be one that pays attention to details and have a curious, inquisitive and prying mind.
7) There is no doubt too that apart from high mastery of language and its technicalities, a good legislative draftsman must be amenable to corrections, suggestions and criticisms.
8) He must be very organized and familiar with the socio-cultural and political peculiarities of the country or region the laws of which he is to draft because he has to draft a bill which aims at different readers, members of parliament, lawyers, professionals, judicial officers and even ordinary citizens.
Conclusively, it is pertinent to note that the above qualities make a legal practitioner to be in the best position for legislative drafting. It is incumbent on the draftsman to do his homework properly and put a carefully, technically processed legislative draft or bill before the legislature. Therefore, legislation as contained in statute books are the finished products of what started as proposals at one time or the other but has passed through certain formal processes in its evolution into law (Abiola Sani, 2006 on Introduction to Legal Method..p203).
(a) Discuss extensively the process of passing a bill into law in a democratic setting in Nigeria
(b) There are various circumstances that necessitate the making of laws which in most cases give birth to legislative proposals. Elucidate the detailed circumstances.
In Nigeria democracy as well as democracies elsewhere, the process of passing a bill into law is quiet rigorous. Under S. 47 of the 1999 constitution of the Federal Republic of Nigeria, Nigeria operates a bi-cameral legislature at the federal level consisting of both a senate and House of Representatives which collectively make up the National assembly. By S. 58 and 59a proposed legislation called a bill, except a money bill can be introduced in either of the two houses and sent to the other house after it had been passed in the originating house. The bill may originate from a group, private individuals, the executives or any of its agencies. However, below are the processes of passing a bill into law;
A bill is first introduced in the House where it originated after it must have been listed in accordance with the House Rules. The bill then undergoes its first reading in the whole House by the Clerk of the House or such designated person. This reading is just to intimate the legislators with the subject matter of the proposed law. it is not subjected to any question at this stage. The bill is therefore printed and distributed to the legislators and a time is fixed for its second reading.
At the second reading stage, the general principles and imports of the bill are discussed and questions are asked on it. Alterations may be proposed to the bill before it is sent to the relevant Standing Committee for a more detailed debate and painstaking consideration.
The house sits separately and each has a committee system by which members are divided into different committees on different subject matters where they have a measure of expertise, special interest or knowledge and or experience. At this committee stage, the bill may witness a more drastic amendment. The function of the committee is to go through the text of the bill clause by clause and if necessary, word by word with a view to making such amendments in it as seem likely to render it more generally acceptable.
After the Committee stage come the Report stage where the bill is put before the House in its amended or revised form for further considerations, the success or failure of the bill will have become evident at this stage.
The bill is thereafter read for the Third and last time in its final draft form and a vote is called and passed into law by a simple majority or a two third majority of the votes depending on the subject matter of the bill. The bill is defeated if it is not supported by the required number of yes votes. If it succeeds, the bill is then passed to the second legislative House and be subjected to a similar procedure as discussed above and presented to the President for his assent. By S.58(1)(3)(4) and (5) and 59(3) and (4) of the 1999 If the President vetoed the bill that is refused his assent, it does not become law except if re-passed by a two-third majority votes of the two legislative Houses after which it automatically becomes law without the need for the assent of the President again
The above are the rigorous processes of passing a bill into law.
Various circumstances that necessitate the making of laws which in most cases give birth to legislative proposals are;
i. Dynamic Nature of the Society
Human beings by nature are dynamic hence law must be dynamic. So as the society develops and embraces new attitudes, values, and ideas, its legal system also reacts to bring its law into conformity with the changing attitudes, values and ideas. Many of our customs previously adhered to strictly, have been invalidated on the ground that they are repugnant to natural justice, equity and good conscience or incompatible with any law then in force.
ii. Change in Political and Economic Ideologies of Government
Law is an instrument of political or social or economic change. So whenever there is change in government it often leads to change in ideologies and new political goals that bring about legal reforms. For instance, transition from military regime to a civilian regime inevitably necessitate changes in the law such decrees, edicts and laws.
iii. Global Shifts in Value
Legislation may be made to embrace community as well as global shifts in value systems and incorporate international standards in certain areas of our domestic law. Essentially, there are now legislation in Nigeria on women’s right and the right of children.
iv. Scientific and Technological Breakthroughs
Proposals for legislation may be made to cope with the scientific and technological breakthroughs in order to maintain law and order in the society. However, the development in internet services has brought about a new set of problems, rights, duties and liabilities which now necessitate the development of information technology laws.
v. Arrest of Anti-Social Behaviour
Government exist to preserve order in the society as well as to provide and guarantee life, property and security of the populace and protect them from acts or omissions of individuals or groups which are against public good. Legislation are made to arrest deplorable, reckless or anti-social practices of the people.
(a) The usefulness of the General principles of interpretation adopted by the courts in statutory interpretation in the Nigeria Legal method cannot be overemphasized. True or false? If your answer is in the affirmative, comprehensively enumerate these principles.
(b) Enumerate what, in your opinion, you would consider responsible for the ineffectiveness or shortcomings of the local attorneys appointed to practice in Nigeria before 1962.
Provided that S.6(6)(b) of the 1999 constitution stipulates that the judiciary is no doubt an organ vested with the duty of settling disputes between individuals and between the state and other person. It vested the judiciary with the powers of interpretation of the laws, hence certain statutes are not always clear, but are ambiguous and capable of diverse meaning. The problem is compounded by the fact that judges are meant to discover the intention of the legislature to adjudicate the cases before the courts. It is in the above regard that the usefulness of the General principles of interpretation adopted by the courts in statutory interpretation in the Nigeria Legal method cannot be overemphasized. Thus;
The Literal rule of Interpretation
This rule holds that the intention of the law must be deduced on its face value. The courts must apply the natural, ordinary or literal meaning of the words. This approach is usually called the ‘plain meaning rule or the literal rule. In Sussex Peerage case, Tindal CJ said regarding literal rules that “if the words of the statute are in themselves precise and unambiguous then no more can be necessary than to expound those words in their natural and ordinary sense”. The truth however is that words has no ordinary meaning except in the context in which it is used. In Adegbanro v Akintola it was applied in the interpretation S.33(10) of the 1963 Constitution which empowered the Governor to remove the premier if “it appears to him that the Premier no longer commands the support of a majority of the House of Assembly” it was held that there was no limitation on the material as to which to base his judgement that he no longer command majority. It can even appear to him in a dream.
The Golden Rule of Interpretation
Golden rule is resorted to in interpreting a statute if the expression used in a statute may be vague and so faulty that no sense can be made of it or where the use of literal rule can lead to outright absurdity. In the case of Beck v Smith it was held by Parke. B that “it is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconvenience but no further”. Similarly inCouncil of the University of Ibadan v Adamolekun where an Edict being inconsistent with a decree was void by S.3(4) of the Suspension and Modification Decree but the supreme has no power to rule in the case as Decree No. 1 1966 ousted the jurisdiction of courts but the court held that it could not have been intended that an inconsistent and therefore void law will be permitted to co-exist with the superior law as this will be not only absurd but be legally anomalous as well. It therefore declared the Edict void by reason of its inconsistency with a Decree.
The Mischief Rule
This is also called “Interpretation by Reference to the statutory Purpose”. It considers the statutory purpose and the historical antecedents of a statute to discover the intention of the parliament in the making the statute. Reference is therefore made to the state of the law prior to the enactment of the statute to know what shortcomings in the old law the new law has come to cure. It is the basic assumption of this rule that legislation are made to correct existing errors or defects in the law and fill the gap created by common law or other sources of law or prior legislation.
Ineffectiveness or shortcomings of the local attorneys appointed to practice in Nigeria before 1962 are:
1. Absence of fit and proper person: there was lack or total absence of fit and proper person to be appointed local attorneys as a result of illiteracy and no legally qualified individuals.
2. There was no legal education: the local attorneys appointed in Nigeria before 1962 had no legal education as the country was at its infancy primitive stage. It was left for the colonial masters to faction out means for legal education in Nigeria subsequently.
3. There were few legally qualified persons to render the service: for instance, of the seven men who served as Chief Magistrates for Lagos between 1862 and 1905, only three had legal qualifications. Of the remaining four, two were ‘writing clerks’, one was a merchant and the fourth was a Commander of the West Indian garrison stationed in Lagos.
4. There was no institution for the formal training of lawyers in Nigeria: To fill the vacuum, the Chief justice was empowered to appoint fit and proper persons with basic knowledge of English law and practice as attorneys.
5. Appointment of no legal individuals: Court clerks who had acquired knowledge of the rudiment of English law were appointed attorneys and granted license to practice law for six months. There license are renewable at the expiration of six months provided that they are of good behaviour.
Discuss in full the concepts of different types of Law
There are different types of Law viz:
(a) Eternal law
(b) Divine law
(c) Natural law
(d) Human or positive law
(a) The Eternal Law
The word “eternal” derives from eternity. It literally means something that has always existed, has never changed and will always exist. Hence, eternal laws are that laws that are constant, everlasting and universal. Thus, eternal law is said to be the foundation of all other laws. That is, every rational law derives more or less from the eternal law. According to Acquinas; “the natural law is nothing but a participation of the eternal law in a rational creature.
(b) Divine Law
Divine law literally means the law of God or Law from God. A perfect example of divine law is the Ten Commandments contained in the Holy Bible in Exodus chapter 10 verses 1-17. This is based on the promise that man is incapable of making a valid and just law because he is sinful in nature. Hence, man must turn to God who is the governing authority of the universe for perfect law.
(c) Natural law
This is the same thing as the “law of nature”. Some writers say it is that which accounts for the behaviour of creatures generally, whether human beings, animals and plants. For instance, plants under given circumstances behave in a particular way and it is the law of nature which makes us sleep, angry, hungry or laughs. Laws of planetary motion; the law of gravitation; the law of relativity which describes the regularity and uniformity with which things happen under certain circumstances are also laws of nature. This is called law of nature in its descriptive sense (Ogbu, 2002).
The law of nature in its prescriptive sense is a universal precept or command intended by nature to regulate human behaviour. Thus natural law means a body of moral rules and principles of human conduct which can be deduced from nature. According to Cicero; True law is right reason in agreement with Nature; it is of universal application, unchanging and everlasting, it summons to duty by its commands and averts from wrong-doing by its prohibitions. And it does not lay its commands or prohibitions upon good men in vein though neither have any effect on the wicked.
(d) Human or Positive Law
Positive law means the same thing as human law. This is in contradistinction to natural law which is the law of God. This school of thought is termed legal positivism. It sees law as that laid down by an authority of the society which provides its sole source of validity. Legal positivism does not concern itself with morality or ethical precepts. In the view of professor HLA Hart, “Law is a command and there is no necessary connection between law and morals or law as it is (lex lata) and the law as it ought to be (de lege ferenda). This assertion has been acknowledged by the supreme court in the case of A.G Federation v Guardian Newspapers Ltdwhere Uwaifo, J.S.C said; “Issue 2 refers to some of the observation of Pats-Acholonu, J.C.A in the present case. It is true that the learned justice devoted some passages in his judgement to the jurisprudential aspect of positive law and natural law, particularly the general precept of natural law which stands for what is good and that if a law at any point departs from natural law, it is no longer law but a perversion of law. In the course of that, the learned justice seems to want to judge the validity of law on the bases of ethics, morality, and religion. The learned justice may admittedly have gone far and away from the real issues. Somehow, I think it must be conceded that proposition is not only wholly irrelevant but it cannot be considered right in the circumstances of this case.
To Bentham, law is essentially a command issued by a sovereign to his subordinates or by a superior being to his inferior being. Austin sees law as a rule laid down for the guidance of an intelligent being by an intelligent being having power over him. To them the commands of the sovereign are backed by sanction.
Describe in detail the criminal justice system in Nigeria
The criminal justice system is the set of agencies and processes established by government to control crime and impose penalties on those who violate laws. In effect there are seven techniques used in modern law as follows;
The Penal Technique
The state plays an active role in the penal technique. The penal technique involves the setting out of acts and omissions which are regarded as violations of the criminal law, the establishment of the police force and other enforcement agencies to prevent and detect violations of the criminal law and the maintenance of the prisons custody and other approved detention centres. The legal rules and institution referred to above collectively make up the criminal justice system which is created for the specific purpose of applying the penal technique.
The penal technique brings about social control in the sense that when a person is alleged to have committed a crime, the matter is reported to the police by the victim instead of resorting to vengeance or self-help. The matter will be investigated by the police and the state either through police authority or the chief law officer will decide whether or not to prosecute depending on the available evidence. In case the police decide to prosecute, the suspect is arraigned in court where he will be given opportunity to defend himself (fair hearing). If the prosecution doubt, the offence depending on the nature, may attract the punishment of fine and or imprisonment or even death sentence which amounts to a form of elimination from the society. the statute of limitation does not apply in criminal cases meaning that an accused can be prosecuted no matter how long the offence has been committed.
Alternatives to the Penal system are:
Non Intervention: simply applied in the Nigerian case of Aoko v Fagbemi where it was held that adultery is not a criminal offence on the ground that it was not defined in any written law in Nigeria. The police encourage recourse to private arranging method on the belief that insistence on the penal technique might occasion some dislocation.
Others are warning or caution, reciprocity or self-help, compounding etc.
It is worth to note that penal method is mainly for administration of criminal justice while the Grievance Remedial technique, the private arranging technique, the constitutive technique and administrative regulatory techniques are most civil.
Write short notes on the following;
(a) Language of the law
(b) Legal rhetoric
(c) Legal logic
(a) Language of the Law
Law is usually expressed in a general language because any law made will apply to a wide spectrum of people in different circumstances. For instance the provision of S.316 of Criminal code which provides for murder detailed circumstances upon which a person can be made liable. Whether a person killed another by shooting, stabbing, poisoning or strangulation provided that the killing is intentional is said to be murder.
It does not mean that law is not expressed in specific term. Of course, law is specific to the extent that it notes down particular situation it should apply. Use of abstract words are highly not advised and thus; other remarkable features of legal language are
a) Frequent use of common words with uncommon meaning. For instance while a lay man will say he has a case in court, a lawyer will say he has a matter or a law suit.
b) Frequent use of Latin and French words and phrases such as ‘consensus ad idem’ ultra vires, audi alterem patem etc.
c) Use of English words such as ‘aforementioned’, ‘hereinafter’ and hereinbefore
d) Use of argot, jargon or slang which are not meant for those outside the legal profession
e) Use of resonant formal words such as “the truth, the whole truth and nothing but the truth.’
(b) Legal Rhetoric
Plato defined rhetoric as the art of winning men’s mind with words. This is why any serious minded law student or lawyer must continuously seek to improve his mastery of language and use of words. Legal rhetoric involves the essential know-how of the legal profession. The skills are acquired through conscious regimented academic and professional training. There is nothing like a ‘born lawyer’ lawyers are made by diligence, patience and application of the knowledge of legal techniques. Lawyers use forensic rhetoric while judges use deliberative rhetoric. Lawyers represent the interest of their clients and their goal therefore is to persuade the court to accept their view points.
(c) Legal Logic
It is not enough for a lawyer to master the facts of his case and ascertain the applicable authority, it is important for him to present his position or argument in a logical manner. The value of logic to the lawyer cannot be over-emphasized. Logic will help to reason clearly, express himself precisely and put his thoughts across firmly. It will teach him how to detect bad argument and identify the flaws in it. It is therefore paramount for a lawyer to be on the lookout to prevent certain arguments that might mislead the court to make a wrong decision or form a wrong conclusion.
*Good luck as you read for your exams. Pax Vobiscum*♦