COURSE CODE: BSM 231, COMMERCIAL LAW 1

COURSE TITLE: COMMERCIAL LAW 1

NUMBER OF UNITS: 2 UNITS

COURSE DURATION: 2 Hour per week.

COURSE FACILITATOR: BARR. R.F. ABIMBOLA

INTENDED LEARNING OUTCOMES

At the completion of this topic, students are expected to understand the following:

1. Hierarchy of Courts
2. Structure of Courts
3. Differences between Civil and Criminal Liability.

HIERARCHY OF COURT

The Meaning of Court

The contemporary meaning of the term 'court' is a place where justice is judicially
administered or the judge or judges who sit in a court or an aggregate of separate courts
judges. A court is a tribunal but not all tribunals are courts. The word 'tribunal' means a
person or body of persons with power to determine issues of law and fact affecting
people's rights and obligations. In this sense, a tribunal has a wider meaning than court. It
extends to and includes courts.

The Supreme Court

The Supreme Court of Nigeria stands at the apex in the hierarchy of courts in Nigeria.
Created in 1963 on the attainment of republican status by Nigeria, the court succeeded
the Judicial Committee of the Privy Council as the Court of final appeal in the country.
The decisions of the Privy Council on appeals from Nigeria therefore rank at par with the
decisions of the Supreme Court. By their manner of appointment through Federal officer
and instrumentalities, funding, control etc. both the Supreme Court and the Court of
Appeal could be said to be Federal Courts. However, judging by the nature of their
appellate jurisdiction which covers hearing appeals from State Courts, and the original
jurisdiction of the Supreme Court which extends to matters between the Federal
Government and a State Government, or State Governments inter se, these Courts are not
really Federal Courts but federation courts. Thus both the Supreme Court and the Court
of Appeal fall within the hierarchy of State and Federal Courts.

The Court of Appeal

The Court of Appeal, established in 1976, is next to the Supreme Court in the hierarchy
of courts in Nigeria. It exercises jurisdiction in both federal and state matters.
Consequently, its decision binds both the Federal High Court as well as State High
Courts. With regard to its own decisions, the Court of Appeal is bound by its previous
decisions. Though the Court of Appeal has several Divisions, every Division of the Court
of Appeal is bound by an earlier decision of any of the other Divisions, subject however,
to the overriding condition that such earlier decision is on all fours with the one under
consideration.

The Federal High Court

The present Federal High Court was established in 1973 as Federal Revenue Court. The
1979 constitution styled it the Federal High Court but its jurisdiction was limited to the
jurisdiction of its predecessor, the Federal Revenue Court.101 Decree 107 of 1993 widened
the scope of its jurisdiction and conferred exclusive jurisdiction on the court in certain
Federal matters. The 1999 constitution in section 25 1 sustained the position. Yet the
court was not conferred with exclusive jurisdiction in federal matters and causes. The
Federal High Court is at par with State High Courts but is outside the hierarchy of State
Courts. The Federal High Court is bound by the decisions of the Court of Appeal and the
Supreme Court but not by its previous decisions.
State High Court
The High Courts of States and the Federal Capital Territory are bound by the decisions of
the Supreme Court and the Court of Appeal. With respect to State matters, a State High
Court does not form part of the hierarchy of the court of any other state based on the
principle of federalism. Consequently, the decision of State High Courts are binding on
only Magistrate Courts, District Courts and other British-type inferior courts in the state
but not those of other states. When a State High Court exercises federal jurisdiction (i.e.
jurisdiction in federal matters and causes) its decision is binding on the Magistrate,
District and other inferior courts of the states.

Magistrate and District Courts

Magistrate and District courts are bound by the decisions of the High Courts of their
respective states and also by the decisions of the Court of Appeal and the Supreme Court.
They are, however not bound by the decisions of High Courts of other states except
where these High Courts exercise federal jurisdiction. Magistrate and District Courts are
not bound by their previous decisions. The judgments of inferior courts are not regarded
as precedents. The large number of cases (mostly questions of fact) tried by these courts
and the circumstances in which they are heard, make it undesirable that they should be
reported.
Customary and Islamic Courts
The preponderance of juridical opinions is that the common law concept of binding
precedent applies only to those courts which are empowered to administer adjectival
common law of which the doctrine forms a part. 109 In other words, the doctrine does not
apply to Customary Courts, Customary Courts of Appeal, Sharia Courts, and Sharia
Courts of Appeal. However, against the current of juridical opinions, a renowned jurist,
T.O. Elias, said that the doctrine of precedent operates in the native and customary
courts.110 A perusal of the Customary Court Laws of different states of the federation
indicates that their procedure and practice shall be regulated in accordance with
customary law."'
Effect of Failure of a Lower Court to follow a Binding Decision of a Higher Court
It was held in Ndili v. Akinsumade126 that where a judge of a lower court refuses to
follow a decision of a higher court on the same matter, his decision is perverse. This does
not mean that the decision is a nullity but the decision is likely to be set aside on appeal.
Furthermore, it can be a ground for disciplinary action against the judge. In Dalhatu v
Turaki127 the Supreme Court per Edozie, J.S.C., maintained that the refusal by a lower
court to follow a binding decision of a higher court is an act of judicial rascality. In Cyril
O. Osakue v Federal College of Education (Technical) Asaba 128 the Supreme Court held
that the refusal of a judge of a lower court to be bound by the decision of the Supreme
Court is gross insubordination and such a judicial officer is a misfit in the judiciary.12

OTHER COURTS AND TRIBUNALS IN NIGERIA

Apart from the Supreme Court, the Court of Appeal, the Federal and State High Courts
which were the subject of the preceding two chapters, other superior courts of record in
Nigeria are the Sharia Court of Appeal, Customary Court of Appeal and the National
Industrial Court. Inferior Courts in Nigeria include the Magistrate's Courts, Sharia Courts,
Customary Courts, Area Courts and District Courts. There are also Election Tribunals
which handle election petitions, and numerous administrative tribunals. These other
Courts and Tribunals will be the subject of this chapter. The functions and powers of
judiciary personnel will also be considered in this chapter.

Sharia court of appeal

The former Northern Regional Government made strenuous efforts to find a compromise
legal system in the multi-religious and multiethnic society of Northern Nigeria. In 1959
the whole structure of the legal and court systems in the North were re-examined in order
to allay the fears of ethnic and religious minorities who are not of Muslim faith. This
resulted in sending two delegations to the Muslim countries which had experienced
similar type of problems. One delegation visited Libya and Pakistan while the other
visited Sudan.
Sharia Courts
Since the year 2000, many States19 in Northern Nigeria have adopted the Islamic legal
system and created Sharia Courts following the precedent set by the Zamfara State
Government. We shall, however, examine only the Sharia Court system of Zamfara State.
By the Sharia Courts (Administration of Justice and Certain Consequential Changes)
Law, 1999 which came into effect on 27 lh January 2000, the Zamfara State Government
established the following Sharia Courts: Sharia Court, Higher Sharia Court, Upper Sharia
Court. A Sharia Court shall be properly constituted if presided over by a single Sharia
Court Alkali.20 An Upper Sharia Court sitting in its original jurisdiction shall be properly
constituted if presided over by a single Sharia Court Alkali, and shall be properly
constituted in its appellate jurisdiction if it is presided over by at least two Sharia Court
Alkalis to hear and determine appeals from the judgments or orders of the Sharia
Courts.21 Its decision shall be by concurrence of all the Alkalis. Where there is no
concurrence of the Alkalis, an additional Upper Alkali shall be appointed to sit with them
and the opinion of the majority shall be the decision of the Court.

Customary Court of Appeal

By section 280(1) of the 1999 Constitution, any State that requires a Customary
Court of Appeal is at liberty to establish it. The Customary Court of Appeal of a State
shall consist of a President and such number of judges as may be prescribed by a law of
the House of Assembly of the State.33 However, for the purpose of exercising any
jurisdiction conferred upon it a Customary Court of Appeal of a State shall be duly
constituted if it consists of at least three Judges of that Court. The Court is empowered to
exercise appellate and supervisory jurisdiction in civil proceedings involving questions of
customary law.34

Customary Courts
These courts had existed throughout the country as Native Courts prior to 1956. Their
names were changed to Customary Court in Eastern and Western Regions of Nigeria in
1956 and 1957 respectively.42 The Courts were established usually by warrants signed
and issued by either the Governor of the state (as in old Anambra and Cross-River States)
or the Chief Judge of the State (as in old Ondo and old Oyo States) or the Attorney
General (as in Lagos State). Such a warrant normally specifies the name, grade,
composition and territorial jurisdiction of the court it has established. However, by
section 6 of the 1999 Constitution, the power of establishing inferior courts is vested on
the National Assembly and State Houses of Assembly.

Court of Resolution
A Court of Resolution was first established in the Northern Nigeria in 1960
pursuant to the provisions of the Court of Resolution Law 1960 of the former Northern
Region. The States that were subsequently carved out of the former Northern Region
retained the Court of Resolution. The Court is to resolve conflict of jurisdiction between
the Sharia Court of Appeal and the High Courts. It is usually composed of the Chief
Judge of the state, who is the President of the Court, the Grand Kadi of the State, one
judge of '
the Sharia Court of Appeal nominated by the Grand Kadi. When any question of conflict
of jurisdiction arises and is referred to the Court, the court will make a declaration as to
which of the courts has jurisdiction over the matter. The decision of the Court is final and
not subject to appeal.
Magistrate's Courts
Section 6(4)(a) of the 1999 constitution empowers State Houses of Assembly to establish
other courts other than superior courts of record. This provision sustains the Magistrate's
Courts established under the Magistrate's Court Laws of various States of Nigeria. There
are in each State of the Federation many Magistrate's Courts as there are Magistrates.
The jurisdiction of each Magistrate extends throughout the State, though its exercise is
limited to the Magisterial District or Division to which a particular Magistrate is
assigned. In States of Northern Nigeria, they are known as Magistrate's Court when they
entertain criminal cases and as District courts when they entertain only civil cases. Such
dual nomenclature is not known to States in Southern Nigeria. In effect, every
Magistrate's Court in Southern Nigeria exercises both civil and criminal jurisdiction.
Magistrate's Courts are inferior courts of record. Their jurisdiction is limited both as to
the nature and the value of the subject matter. They are also courts of summary
jurisdiction in that they do not follow the elaborate procedures of the High Courts in
their proceedings.
Each State of the Federation is divided into Magisterial Districts distinguished by such
names or numbers as the Chief Judge thinks fit, and each District can be extended or
reduced in size at the discretion of the Chief Judge. At least one Magistrate is assigned to
each District to preside over the court. Where there is more than one Magistrate in a
District, the District is normally headed by the most senior Magistrate whose duty it is to
ensure that all legal business within the district or districts is evenly distributed and
expeditiously disposed of. Magistrates are normally of various
grades.
Appeal lies from the decisions of Magistrate's Courts to High Courts. The High Courts
also exercise supervisory jurisdiction over Magistrate's Courts. However, appeals from
decisions of lower grades of Magistrate's Court may lie to higher grades of Magistrate's
Court in some states.
Generally, Magistrate's Courts exercise appellate jurisdiction over decisions of
Customary Courts, except where declaration of title to land is involved. In most States,
Magistrate's Courts have no original or appellate jurisdiction in land matters.

District Courts
In Northern States the Magistrate's Courts assume the names of District Courts and the
Magistrates are known as District Judges when exercising civil jurisdiction. Magistrate's
Courts have no civil jurisdiction in those States. The District Judges are of various
grades, with each grade having a maximum limit in the value of the subject matter which
it has jurisdiction to entertain.
District Courts have no jurisdiction, unless the Governor-in-Council directs otherwise, in
issues involving interest in, or title to, land or matters subject to the jurisdiction of Area
Court relating to the custody of children, inheritance upon intestacy, the administration of
intestates estates, matrimonial causes and matters between persons married under
customary law.50 Appeals from District Courts usually go to High Courts.
Area Courts
In Northern Nigeria, the equivalent of Customary Court is Area Court. Like
Customary Courts in Southern Nigeria, they are the direct successors to the former Native
Courts. In 1966, the Native Courts Law of Northern Nigeria was replaced by the Area
Courts Edicts of the various States of Northern Nigeria, which changed the names of the
Courts to Area Courts. In each State, the Chief Judge is empowered to issue warrants
establishing such courts identified by such names and located in such area as he considers
fit, and by such a warrant to define the territorial jurisdiction of the courts.
An Area Court is constituted by a judge, designated Area judge, sitting alone, or
with one or more members.51 All members of Area Court including Area judges are
public officers in the public service of the State. They are appointed by the Interim Area
Coiuts Judicial Service Board for the State. Area Courts are of various categories or
grades - Upper Area Court, Area Courts Grade II and Area Courts Grade III.

Juvenile Courts
The Children and Young Persons' Law of the various States of the Federation
empower the Chief Judge of a State to constitute a Juvenile Court for the purpose of
hearing and determining cases relating to children and young persons

Federal Capital Territory Courts

These include the High Court of the Federal Capital Territory, the Sharia Court of Appeal
of the Federal Capital Territory; the Customary Court of Appeal of the Federal Capital
Territory; Magistrate's Court, Customary Court or Area Court of the Federal Capital
Territory. These courts are in all respects similar to their state counterparts.
The National Industrial Court shall have and exercise jurisdiction and powers to
entertain any application for the enforcement of any award, decision, ruling or order
made by any arbitral tribunal or commission, administrative body, or board of inquiry
relating to, connected with, arising from or pertaining to any matter of which the National
Industrial Court has jurisdiction
to entertain.65
The National Industrial Court shall have and exercise jurisdiction and powers in criminal
causes and matters arising from any cause or matter of which jurisdiction is conferred on
the National Industrial Court by the Constitution or any other Act of the National
Assembly or by any other law.
Election Tribunals
Election tribunals are judicial tribunals. They share much of the attributes of courts. Prior
to the recent amendment of the 1999 Constitution, section 285 created two Election
Tribunals - National Assembly Election Tribunals and Governorship and Legislative
Houses Election Tribunals.
Section 285(1) and (2) of the unamended 1999 Constitution which conferred jurisdiction
on Election Tribunals provides as follows. (1) There shall be established for the
Federation one or more election tribunals to be known as the National Assembly Election
Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction
to hear and determine petitions as to whether
a) any person has been validly elected as a member of the National Assembly;
b) the term of office of any person under this Constitution has ceased;
c) the scat of a member of the Senate or a member of the House of Representatives has
become vacant; and
d) a question or petition brought before the election tribunal has been properly or
improperly brought.

STRUCTURE OF THE COURT

Under this topic, we shall discuss the various courts established by the Constitution of the
Federal republic of Nigeria. Also we would discuss the establishment of such courts, the
jurisdiction and composition respectively.

The following are the courts established by the Constitution for the Federation, that is, at
the Federal Government level.

I. The Supreme Court of Nigeria

II. Court of Appeal
III. Federal High Court
IV. The High Court of the Federal Capital Territory, Abuja
V. The Sharia Court of Appeal of the Federal Capital Territory, Abuja.
VI. The Customary Court of appeal of the Federal Capital Territory, Abuja
VII. Such other courts as may be authorized by law to exercise jurisdiction on matters
with respect to which the National Assembly may make laws. Such as tribunals,
National Industrial Court.

The Supreme Court of Nigeria. (SC)

The SC shall consist of :

I. The Chief Justice of Nigeria

II. Such number of justices of the Supreme Court, not exceeding twenty-one as may
be prescribed by the Act of the National Assembly.

JURISDICTION OF THE SUPREME COURT

The Supreme Court shall, to the exclusion of any other court, have original jurisdiction

In any dispute between the Federation and a State or between the States.
Also, the Supreme Court shall have appellate jurisdiction, to the exclusion of any other
court of law in Nigeria, to hear and determine appeals from the Court of Appeal.

COMPOSITION OF THE SUPREME COURT

The Supreme Court shall be duly constituted if it consists of not less than five justices of
the Supreme Court.

NB: the Supreme Court is the final court.

COURT OF APPEAL

The Court of Appeal shall consist of-

A president

Such number of Justices not less that forty-nine

JURISDICTION OF THE COURT OF APPEAL

The Court Of Appeal have original Jurisdiction to hear and determine any question as to
whether:

a. Any person has been validly elected to the office of President or Vice-President
b. The term of office of the President or vice President has cease
c. The office of President or Vice-President has become vacant.

APPELLATE JURISDICTION OF THE COURT OF APPEAL

The court of appeal shall have jurisdiction to the exclusion of any other court of law in
Nigeria to hear and determine appeal from the Federal High Court, the High Court of the
Federal Capital Territory, Abuja. High Court of a State. Sharia Court of Appeal of the
Federal Capital Territory, Abuja, Customary Court of Appeal of a State, and from
decisions of a court martial or other tribunals.

THE COMPOSITION OF THE COURT OF APPEAL

The Court of Appeal shall be duly constituted if it consist of not less than three Justices
of the Court of Appeal and in the case of appeals from:

a. A Sharia Court of Appeal: justices must be learned in Islamic personal law

b. A Customary Court of Appeal: justices must be learned in Customary law.

THE FEDERAL HIGH COURT

The Federal High Court shall have and exercise jurisdiction to the exclusion of any other
court in civil courses and matters relating to the following:

a. Revenue of the Government of the Federation

b. Taxation of Companies
c. Customs and excise duties and export duties
d. Banking, banks and other financial institution
e. Operation of companies and allied maters Act.
f. Copyright, patent, designs, trademarks and passing-off, industrial designs and
merchandise, combines and trusts, standard of goods and commodities and
industrial designs.
g. Admiralty jurisdictions
h. Diplomatic, consular and trade.
i. Citizenship, naturalization and aliens, deportation of persons who are not citizens
of Nigeria, extradition, immigration, passport and visas etc.
j. Bankruptcy and insolvency
k. Aviation and safety of aircraft
l. Arms, ammunition and explosives
m. Drugs and poisons
n. Mines and minerals
o. Weights and measures
p. Administration and control of the Federal Government or any of its agencies.
 q. Operation and interpretation of the Constitution
r. Any action for a declaration affecting the validity of any executive or
administration action.
s. Treason, treasonable felony
t. Criminal matters in respect of which jurisdiction is conferred.

COMPOSITION OF THE FEDERAL HIGH COURT

The Federal High Court shall be duly constituted if it consist of at least one judge of that
Court.

THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY, ABUJA.

JURISDICTION OF FCT HIGH COURT

The FCT High court shall have jurisdiction to hear and determine any civil proceedings
in which the existence of a legal right, power, duty, liability, privilege, interest, obligation
or claim is in issue.

Also, the FCT high court have power to determine any criminal proceedings involving
penalties, forfeiture, punishment or other liability.

COMPOSITION OF FCT HIGH COURT

The High Court of FCT shall be duly constituted if it consist of at least one Judge of that
Court.

SHARIA COURT OF APPEAL OF THE FCT, ABUJA

The Sharia Court of Appeal shall exercise appellate and supervisory jurisdiction in civil
proceedings involving questions of Islamic personal law.

COMPOSITION OF SHARIA COURT OF APPEAL OF FCT, ABUJA.

The Sharia Court of Appeal Shall be duly constituted if it consists of at least three kadis
of that court.

THE HIGH COURT OF A STATE.

JURISDITION OF THE HIGH COURT OF A STATE.

The High Court of a State shall have jurisdiction to hear and determine any civil
proceedings in which the existence of a legal right, power, duty, liability, privilege,
interest, obligation or claim is in issues.

Also, the High Court of a State shall have jurisdiction to determine any criminal
proceedings involving or relating to penalty, forfeiture, punishment or other liability in
respect of an offence committed by any person.

COMPOSITION OF A HIGH COURT OF A STATE.

The High Court of a State shall be duly constituted if it consists of at least one Judge of
that court.

MAGISTRTE COURT

The Magistrate Courts are usually established by statute, that is, the Magistrate Court
Law, passed by each of the States n Nigeria.

JURISDICTION OF A MAGISTRATE COURT

The jurisdiction of a magistrate is usually subject to a financial limit, depending on the

grade of the magistrate. Thus, the matter a particular magistrate can hear is usually
determine by the amount of money involved in the matter. For instance, the financial
limit of the jurisdiction of a magistrate court in Lagos State for the time being is
10,00.00.00 in civil matters and 100,00.00 in criminal matters.

COMPOSITION OF A MAGISTRATE COURT

A Magistrate Court is composed of a single or one magistrate who sits alone and
normally acts alone as a magistrate.

CIVIL LIABILITY

A Civil liability occurs when a right of an individual or an organization is said to have

been breached. Such persons that infringe on another person’s right would be liable in
law to damages as the case may be.

CRIMINAL LIABILIY

When an offence is said to have been committed against the state. The accused, after
being charged to court and proven guilty would be criminally responsible for the offence
charged. An example is a murder.