Nigerian. Legal. System

Transcription

1 Charles Mwalimu THE Nigerian Legal System VOLUME 2 Private Law PETER LANG New York Washington. D.C./Baltimore Bern Frankfurt am Main * Berlin Brussels Vienna * Oxford

2 Contents Volume II Private Law Introduction to Nigerian Legal System Table of Cases Table of Statutes Foreword Preface Acknowledgements xxi xxxix lix lxi lxiii Chapter I Introduction 1 Currently Applicable Laws 1 Groundnorm 3 Fundamental Objectives and Directive Principles of State Policy 4 Economic Objectives 4 Social Objectives 5 Educational Objectives 6 Foreign Policy Objectives 6 Environmental Objectives 7 Directives on Nigerian Culture 7 Media Objectives and Obligations 8 Nexus of Fundamental Objectives to Fundamental Human Rights 8 Article 4 and the Second Schedule to the Constitution 10 The Exclusive Legislative List 13 The Concurrent Legislative List 16 Enforcement Mechanisms 16 Jurisdiction and Powers of the Federal High Court 17 Powers of the Federal High Court 19 Chapter II Security of Environment Part I 23 Introduction 23 Overview Nigeria's Environmental Problems 24 International Aspects of Nigerian Environment 25 Subject Classification 31

3 viii Volume II Private Law: Introduction to Nigerian Legal System Air/Atmosphere 32 Air Pollution 33 Land and Land Management 34 Forests 36 Agriculture 42 Nature and Biodiversity 47 Desertification and Drought 49 Energy, Natural Resources and Mining 52 Environmental Impact: Toxic Chemicals 59 Chapter III Security of Environment Part II 61 Economic Aspects of Sustainable Development in Nigeria 61 International Cooperation 61 Financing 63 Alterations in Patterns of Consumption 64 Nigerian Environmental Statistics 71 Water, Oceans and Coastlines : 75 Freshwater 75 Environmental Monitoring Programs 76 Management of Water Resources 77 Strategic Policies and Plans 79 Industrial Water Pollution Control Program 82 Standards of Industrial Effluents 83 Water and Seas Pollution 84 Oceans and Coastal Areas 89 General Regimes and Status 89 The Nigerian Marine Environment 91 Oil Spills and Impact of Oil on the Environment 95 Solid Wastes and Sewage 99 Depletion of Fishery Resources and Modification of Ecosystem 100 Flooding and Coast Erosion 100 Chapter IV Nigerian Environmental Laws 103 Introduction i Q3 Constitutional Provisions 104 Environmental Legislation 105

4 Contents ix Before and Beyond 109 Environmental Treaties Nigeria is a Party 122 Cultural Resources 129 Situation on the Ground 130 Litigation 130 Chapter V Nigerian Land Laws and Property Administration Part I 137 Introduction 137 Background 138 Land Tenure Before Land Tenure from 1978 and Beyond 140 Constitutional Provisions 141 Legislative Framework: The Land Use Act General Provisions 145 Principles of Land Tenure 146 Rents 150 Revocation of Rights of Occupancy and Compensation thereof [a] 151 Revocation of Rights of Occupancy and Compensation thereof [b] 151 Transitional and Other Provisions 152 Jurisdiction of High Courts and Other Courts 152 Supplemental Provisions 152 Analysis 153 Expropriation and Compensation 165 Jurisdiction of Courts in Matters of Land 170 Land Use and/or Occupation and not Land Ownership 174 Chapter VI Nigerian Land Laws and Property Administration Part II 185 Analysis Continued 185 Administration of Land (Use, Possession/Occupation) and Not Ownership 185 Continuation of Prior Use, Possession or Occupation of Land Under the Land Use Act 193 Highlights of Case Law on Administration of Land 199 Proof of Declaration of Title 212

5 x Volume II Private Law: Introduction to Nigerian Legal System Highlights of Case Law Directly Under the Land Use Act 221 Summation 225 Chapter VII Nigerian Land Laws and Property Administration Part III 237 Supplemental Legislation 237 The National Agricultural Land Development Authority Act The Nigerian Agricultural Insurance Corporation Act The National Agricultural Seeds Act The Research Institutes (Establishment, etc) Order of The International Institute of Tropical Agriculture Act History and Texts 257 Pre-1978 Nigerian Property Law Generally 259 The General Law of Administration of Property in Nigeria 262 Dual System of Tenure in Nigeria 263 Legal and Equitable Interests in Property 264 Historical Perspectives 265 Pre-1978 Title to Land & Systems of Tenure under Customary Law 267 Family Property and Acquisition of Title to Land Inter Vivos under Customary Law 271 Alienation of Family Property 273 Alienation of Community Land, Methods of Conveyancing and Priority of Competing Interests 275 Registration of Instruments 277 Void Documents Due to Non-Registration, Loss of Priority, Non Admissibility in Evidence and Doctrine of Notice 280 Effect of Registration on Doctrine of Notice & Transactions Covered by Customary Law 281 Customary Dealings and Statutory Requirements of Writing 282 Effect of Writing, Choice of Law and Vendor's Title 282 Extinction of Title and Limitation of Actions 283 Chapter VIII Nigerian Land Laws and Property Administration Part IV 285 Registration of Titles to Property (Land) 285 Registration and the Land Use Act 287 Process and Procedure 290 History and Texts 292

6 Contents xi The State and Land 292 State Land in Southern Nigeria 293 State Land in the former Colony of Lagos 294 State Lands in the former Protectorate (Southern Nigeria) 297 Management of State Land 298 Prior Law on Dispositions of Land by Aliens 303 Historical Perspectives of Acquisition of Land Rights by Aliens and Non-Natives of Nigeria 312 The Protectorate of Southern Nigeria 312 The Colony and Protectorate of Southern Nigeria ( ) 313 The Protectorate of Northern Nigeria ( ) 313 The Colony and Protectorate of Nigeria (1914-) 315 Nigeria A Note on Prior Jurisdiction of Courts 317 Evidence and Burden of Proof 318 Conveyancing in Nigeria 320 Conveyancing under Customary Law 321 Conveyancing under General Non Customary Laws based on English Law 322 Registration Laws in Historical Perspectives 322 Mortgages Generally or Statutory Law Customary Law of Mortgages 329 Leases 330 Chapter LX Nigerian Land Laws and Property Administration Part V 335 The Law of Landlord and Tenant 335 Customary Tenancies Generally 335 Tenancies of Duration 337 Land Tenure under Islamic Law in Nigeria 341 Occupied Land 342 Unoccupied Land 342 Common Land 343 Tenancies under General Statutory Laws 344 The Landlord and Tenant Law Recovery of Premises Legislation 346 The Lagos Rent Control and Recovery of Residential Premises Law

7 xii Volume II Private Law: Introduction to Nigerian Legal System General Provisions on Eminent Domain and Expropriation: Compulsory Acquisition of Land and Compensation 349 Constitutional Provisions 351 Prior Highlight of Compulsory Acquisition of Land and Compensation The Lagos Public Lands Acquisition Law 1973 as amended 353 Other Relevant Compulsory Acquisition Legislation 359 Case Law 363 Zoning, Town and Country Planning Laws 364 Zoning or Country and Town Planning in the States 367 The Town and Country Planning Ordinance (Lagos, Eastern and Northern States) 368 Planning Authorities 374 Lagos State 374 Eastern States 375 Western and Mid-Western States 376 Northern States 378 Interaction and Integration of Customary Law with the General Law of Property 378 Other Legislation Relevant to Land Laws and Property Administration The Survey Act 382 The Land (Perpetual Succession) Act 1924 as amended 383 The Abandoned Properties Act 1979 and the Federal Housing Authority Act State Legislation related to Land 384 Chapter X Introducing History and Development of Commercial, Business and Trade Laws Part Introduction 387 Constitutional Provisions 390 National Integration and Economic Objectives 393 National Integration and Social, Educational and Foreign Policy Objectives 395 Jurisdiction of the Federal High Court 397 History and Texts 397 Sources of Nigerian Commercial, Business and Trade Laws 399 Nigerian Contract Laws 400 Sources of Nigerian Contract Laws 400 Applicable Enactments 402

8 Contents xiii Historical Perspectives 404 Highlights of Contractual Capacity 408 Limitation of Contractual Actions 409 Sale of Goods, Sales and Other Obligations, Bills of Sale 410 Sale of Goods, Sales and Obligations 410 Sales by Auction and Bills of Sale 411 Agency 412 Money Lending 413 Bailment 415 Pawnbroker Laws 416 Innkeepers Laws 417 Corporate Laws 419 The Companies Act The Companies Act The Companies and Allied Matters Literature Review 424 Summary Guide to Incorporation 427 Conclusion 430 Other Corporate Related Organizations and Institutions 432 Cooperative Societies 434 Partnerships 434 Registration of Business Names 435 Chapter XI Introducing History and Development of Commercial, Business and Trade Laws Part II 437 Stock Exchange and Capital Issue or Capital Markets 437 Investment and Securities 438 Investment Promotion 438 Investment Securities 443 Foreign Exchange 454 Public Enterprises Privatization and Commercialization 460 Small and Medium Scale Industries 464 Niger Delta Development 465 Consumer Protection 467

9 XIV Volume II Private Law: Introduction to Nigerian Legal System Chapter XII Introducing History and Development of Commercial, Business and Trade Laws Part III 473 National Health Safeguards 473 Food and Drugs 473 The National Agency for Food and Drug Administration and Control (NAFDAC) 475 Hire Purchase (Leasing) Laws 479 Cultural Property 480 Regulation of Traffic in Cultural Property 481 Other Laws Establishing and/or Protecting Cultural Heritage 482 International and Regional Laws of Cultural Property 482 Africa 490 Intellectual Property 491 Trade Marks, Designs, Patents and Copyrights 491 Trade Marks 491 Nigerian Law 492 The Register and Registrar 494 Effect of Registration 495 Registrability and Validity of Registration 498 Procedure and Duration of Registration 501 Assignment and Transmission 503 Use and Non Use 505 Chapter XIII Introducing History and Development of Commercial, Business and Trade Laws Part IV 513 Correction and Rectification of the Register 513 International Arrangements 516 Patents and Designs 518 Patents 519 Compulsory Licenses 528 Use of Patents of Government Agencies 530 Designs 532 Copyrights 544 Standards 546

10 Contents xv The National Office for Technology Acquisition and Promotion (NOTAP) 551 International Treaties and Agreements Nigeria is a Party 554 Chapter XIV Introducing History and Development of Commercial, Business and Trade Laws PartV 557 Commodity Boards 557 Productivity Prices and Incomes Board 558 Introduction to Taxation, Customs and Excise, Tariffs and Trade Practices 558 Introducing History and Development of Regional Tax Laws 567 Eastern States 567 Lagos State 567 Northern States 568 Western States 569 Summary of Current Taxation Legislation 569 Corporate Tax 571 Individual Taxes 572 Tariffs, Customs and Excise, Import and Export 581 Chapter XV Introducing History and Development of Commercial, Business and Trade Laws Part VI 597 Finance Laws, Banks and Banking and Insurance 597 Finance Laws 597 Banks and Banking 599 Highlights of Banking 600 The Central Bank of Nigeria 602 Dishonored Checks Offenses 606 Corrupt Practices, Economic and Financial Crimes 606 Corrupt Practices 606 Economic and Financial Crimes 610 Money Laundering 615 Advance Fee Fraud and Other Connected Offenses 621 Bills of Exchange and Other Promissory Notes 626 Insurance 628 Marine Insurance 631

11 xvi Volume II Private Law: Introduction to Nigerian Legal System Deposit Insurance 634 Reinsurance 636 Chartered Insurance 638 Agricultural Insurance 639 National Health Insurance 639 National Insurance Commission 641 Insurance Business 643 Commercial Arbitration 645 Bankruptcy and/or Insolvency 652 Chapter XVI Communications, Media and Press Laws Part Introduction 653 Constitutional Authority 653 The Nigerian Constitution Communications Laws 656 Telegraphs 659 Wireless and Telegraphs 663 Radio and Broadcasting 666 Legal Framework of New Regimes of Telecommunications 675 Motion Pictures (Film), Cinematography and Video 681 Eastern States 687 Lagos State of Nigeria 688 Northern States of Nigeria 688 Western States of Nigeria 689 The National Film and Video Censors Board 690 Chapter XVII Communications, Media and Press Laws Part II 701 Television 701 News Agencies and Information Services 704 Newspapers 706 Eastern States of Nigeria 707 Lagos State of Nigeria 708 Northern States of Nigeria 708 Western States of Nigeria 709 Other Newspaper Related Laws 710 State Publishing and Printing Laws 717

12 Contents xvii Eastern States of Nigeria 717 Lagos State of Nigeria 718 The Northern States of Nigeria 720 Western States of Nigeria 720 Archives, Museums, Monuments, Arts & Culture and Libraries 721 Archives 721 Museums and Monuments 726 Arts and Culture 731 Libraries 733 Post Office Legislation 737 Chapter XVIII Transportation and Carrier Laws Part Introduction 751 Constitutional Authority 753 History and Texts 753 Common Carriers of Passengers 754 Contract of Carriage 754 Remedies of Common Carriers by Land 755 Limitation of Actions 757 Carriage of Passengers and Goods by Land 758 Road Transportation..759 History and Texts : 761 Railways 766 Chapter XLX Transportation and Carrier Laws Part II 773 Carriage of Goods and Passengers by Sea 773 Maritime Transportation and Port Operations 774 Shipping Legislation 777 The Merchant Shipping Act in Historical Perspective 779 Nigerian Ports Authority Act Regulation of Docks 805 Coastal and Inland Shipping (Cabotage) Act 807 Nigerian Shippers' Council Act 818 The Merchant Shipping (Load Lines) Act The Territorial Waters Act and the Flags of Nigerian Ships Act 819 The Sea Fisheries and the Inland Fisheries Legislation 820

13 xviii Volume II Private Law: Introduction to Nigerian Legal System National Inland Waterways Act 823 River Basins Development Authority Act 827 Water Resources Act 827 The Exclusive Economic Zone Act 829 Other Pertinent Instruments 830 Chapter XX Transportation and Carrier Laws Part III 833 Carriage by Air and Civil Aviation in Nigeria 833 Legislative Framework 835 History and Texts 836 Chapter XXI Law Enforcement Part I 845 Introduction 845 Constitutional Provisions 845 Legislation 848 Philosophy on the Nature of Powers of Police 851 Function of Nigerian Police 855 Historical Perspectives 873 Native and/or Local Authority Police Forces 878 NPF Technical Support 881 Constitutional Provisions and Legislative Authority 883 Chapter XXII Law Enforcement Part II 895 Legal Accountability of Police 895 Accountability of Police under Tort Law 912 Accountability of Police under Administrative Law 914 Accountability of Police under the Criminal Law 922 Chapter XXIII Law Enforcement Part III 927 Legislation 927 Other Relevant Legislation 933 The Native Authority Law

14 Contents xix Local Government Police Law Special Constables Ordinance Special Constables Act Police Regulations Nigeria Police Force (Miscellaneous Provisions) Act Prisons 936 Prisons in Nigeria under the Prisons Act Youth Corps Legislation 944 National Security Agencies 948 Preservation of Peace, Public Order and Public Security 948 Preservation of Peace 948 Public Security and Public Order 950 Public Security 950 Public Order 952 Protection of Public Officers and Official Secrets 957 Public Officers 957 Official Secrets 958 Chapter XXIV Armed Forces and Military Laws Part Introduction 961 Constitutional Provisions 961 Armed Forces under the Constitution of Sources and Nature of the Laws 969 Customary Law as a Source of Contemporary Nigerian Military Law 971 Legislation as a Source of Nigerian Military Laws 971 Court Decisions 972 Strength of the Armed Forces 973 Nigerian Armed Forces in Historical Perspectives 975 Nigerian Armed Forces in Action 978 Military Government and 1984 to Applicable Legislation 981 History and Texts 981 Army 982 Military Forces Reserve 990 Nigeria Local Forces 992 Military Units 994 Other Relevant Legislation 995 Volunteer Force Ordinance 995

15 xx Volume II Private Law: Introduction to Nigerian Legal System West African Frontier Force (Amendment) Ordinance No. 2 of Nigeria Military Forces Royal West African Frontier Force (Amendment) Ordinance No. 26, Nigerian Military Forces (Change of Titles) Ordinance No. 3 of Forces (Amendment) Act No. 6, 1966 and the Visiting Forces Act The Armed Forces and Police (Special Powers) Act No 24, 1967 and the Advisers to Military Governors, etc. (Ex-Gratia Award) Act No. 57, Armed Forces (Special Provisions) Act No. 15 of 1972 and the Air Force (Verification and Settlement of Contracts) Act No. 18, Military Courts (Special Powers) Act No. 4 of 1977 and the Armed Forces Proceedings (Special Provisions) Act No. 97 of Forces Act No. 11, 1984 and the Military Courts (Special Powers) (Amendment) Act No. 9 of Flags and Coats Arms Ordinance No. 48, I960 and the Army Color (Prohibition of Use) Act No. 26, Chapter XXV Armed Forces and Military Laws Part II 1003 The Air Force under the Air Force Act No. 11 of The Nigerian Navy 1009 Naval Discipline 1011 The Nigerian Navy under the Navy Act The Armed Forces Act No Veterans Organizations 1018 Firearms, Arms and Munitions and Explosives Laws 1020 Firearms, Arms and Munitions 1020 The Robbery and Firearms (Special Provisions) Legislation 1023 Explosives Law 1024 Public Utility Corporations connected with Firearms 1025 Defense Industries Corporation 1025 The Nigerian Atomic Energy Commission 1028 Armed Forces Pensions and Other Welfare Legislation 1029 Armed Forces Pensions Act No. 103 of Index 1035