CERTIFICATE IN LAW

COURSE LAW 111 INTRODUCTIONS TO LAW

Syllabus

1.0 AIM:

The course is aimed at broadening Students understanding of general principles of law.

2.0 COURSE OBJECTIVES:

a) At the end of the course students should be able to

b) Demonstrate an understanding of key legal concepts and principles, and

c) Demonstrate an appreciation of the nature of the law in selected topics.

3.0 COURSE CONTENT

3.1.0. LEGAL PROCESS/GENERAL PRINCIPLES OF LAW

3.1.1. What is law? / Definition of law

3.1.2. Sources of law
3.1.3. Classification of law
3.1.4. Judicial precedents
3.1.5. Statutory interpretation
3.1.6. The Court system in Zambia
3.1.7. Interaction between English common law, equity and Zambian customary law.

3.2.0. INTRODUCTION TO CRIMINAL LAW

3.2.1. What is crime?

3.2.2. Characteristics of a crime.
3.2.3. Classification of crimes
3.2.4. Criminal liability
3.2.5. Parties to a crime
3.2.6. Institution of criminal proceedings.

3.3.0. LAW OF TORTS

3.3.1. Law of Torts distinguished from criminal law and law of contract.
3.3.2. Vicarious liability

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3.3.3. Contributory negligence
3.3.4. Trespass
3.3.5. Nuisance
3.3.6. Defamation
3.3.7. Remedies in Tort.

3.4.0. LAW RELATING TO WILLS AND INTERSTATE SUCCESSION

3.4.1. What is a will?

3.4.2. Who has capacity to make a will?
3.4.3. Interstate succession
3.4.4. Rules on intestacy.

END OF SYLLABUS

4.0.0. METHOD OF TEACHING

There will be four contact hours per week

5.0.0. ASSESSMENT

Continuous Assessment 50%

Final Examination 50%

6.0.0. PRESCRIBED BOOKS.

Churchy, 1994. Introduction to Zambian Law,

Lusaka, University of Zambia, School of Law.

Rogers, E.W 1994. Winfield and solowize on Tort, 14th edition, London, Sweet
and Maxwell Limited.

Seidman, R. (1966. A Source Book on Criminal Law, London Sweet

and Maxwell Limited

Hyas, J.G.M. (`970. The Law of Torts, London

6.0. RECOMMENDE BOOKS

.
Clerk and Lindsel 1989. Torts, 16th edition, London, Sweet and Maxwell
Limited.

Hartchard, T. and Ndulo, M 1994. Readings in Criminal Law and

Penology. Lusaka,
Multimedia Publications.

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Reymond, P.W.D. (1970. General Principles of English law, London, E.D.
Medonald and Evans Limited.

Williams G. 1982 Learning the Law, 11th edition, London and Sons.

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INTRODUCTION TO LAW

LEGAL PROCESS (General Principles of law).

NATURE OF LAW

In any community or group, rules made by people will develop to control the relationship
between members. These rules are essential if the community is to work and will be
found in all forms of activity which depend upon some form some form of cooperation in
games, in schools or clubs. The rules come, into existence in varying ways, although in
most cases, there must have been agreement between at least some of the members of
the community that the rules were desirable. As such the rules governing particular states
or groups differ from that of the other. Thus the law of a particular state is the body of
rules designed to regulate human conduct within that state.

The law consists of those rules of conduct, which are enforced by the daily constituted
courts of that state. Because of the above a possible definition of what law is can only be
a general one to cover all the areas. Law can thus be defined as that set of rules and
regulations that govern and regulate conduct or behaviour in a particular group or society
or state. But the law we are learning is different because aside that definition the law has
a sanction of the state.

There are three types of rules and regulations:

1.0. Rules which forbid certain types of behaviour under threat of penalty (criminal
law.

2.0. Rules which require people to compensate others whom they injure in certain
ways (civil law).

3.0. Rules which specify what must be done to order certain types of human conduct
within a state (law of torts) activity e.g. to form a company, to marry or to make a
will.

In addition there is other moral, social and ethical rule, which helps to regulate human
conduct within a state.

THE NATURE AND THE CONCEPT AW (SUMMARY)

(i) Law is directed at conduct of people.
(ii) Law should have general application and not targeted.
(iii) Within a particular country, any law outside the country can only be affected
after certain conditions are fulfilled. E.g common law.
(iv) Law must be enforceable by the courts authority in a country.
(v) The court ensures that rights and obligation are held and ensures final
determinant of disputes.
(vi) Some laws eg. Parliamentary procedure church, club membership may not be

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 court enforceable enforceability, Powers of the Court are however limited for
matters brought before courts.
Courts have to interpret the law have a final say….

(vii) Parliament makes law, but the courts can make laws, though case laws.
Courts also shape the application of laws.
(viii) Laws are those set of rules of conduct that are enforced by due court process
or tribunal.

THE CONCEPT OF NATIONAL LAW (NL).

There is a difference between National laws and other laws. National laws are a
collection of rules the objective of which is to maintain and preserve order in a state. The
difference between National Laws and other kinds of laws is that National are
actually binding on and is enforceable on all the inhabitants of a
particular state. Other laws are neither binding nor enforceable on the inhabitants of
another state. Sometimes the majority view is problematic for the individual and
infringes upon the rights of the individual. National laws are both Adjectival and
substantive.

(a) ADJECTIVAL LAW refers to procedure by which substantive law is

enforced eg. Rules of evidence, (civil and criminal procedure).

(b) SUBSTANTIVE LAW refers to actual content of statutes, regulations and

judicial decisions that prescribe behaviour and set out rights and duties e.g. Family
law, commercial law, administrative law.

CLASSIFICATION OF LAW

1. PRIVATE AND PUBLIC LAW

(A) PRIVATE LAW is concerned with the legal relationships of ordinary persons
in every day life. It is also concerned with legal position if corporate bodies and
associations of persons eg. Partnerships, private law includes contract and commercial
law, the law of tort, family law, divorce adoption and guardianship.

(a) PUBLIC LAW is concerned with the constitution and functions of the money
different kinds of governmental organizations including local authorities such as
district and townships councils and their legal relationships with the citizen and each
other. Public law is also concerned with crime, which involves the states relationship
with the power of control/over the individual.

2. CIVIL LAW AND CRIMINAL LAW.

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CRIMINAL LAW. A crime is regarded as wrong done to the state. Prosecutions are
conducted by the state through the director of Public Prosecutions and police, although
in certain special cases. Private Citizens can prosecute with the consent of the D.P.P.
Criminal law is thus concerned with legal rules which provide that certain forms of
conduct shall attract punishment by the state, this is because it is fit that society cannot
work if people are allowed to e.g. take the property of others at will, therefore theft is
forbidden and thieves are punished. The aim of criminal law is not to compensate the
victim but to punish the wrong doer through either a fine or imprisonment.

CIVIL LAW, Civil law is concerned with compensating persons who are injured by acts
or omissions of other members of society with the aim of reconciling the parties. Civil
actions may be commenced by any person who seeks compensation for a loss, which he
has suffered. The person who takes the matter to court is known as plaintiff. If
successful he will usually be awarded damages, which must be paid by the defendant.
Their purpose is to compensate the plaintiff for his loss rather than to punish the
defendant. There are money categories of civil law, for example_
(a) CONTRACT: This determines whether promises made by persons are
enforceable.

(b) TORT: A tort is de fined as the breach of general duty to care imposed by law
for example the duty not to trespass on another person’s property.

CRIMES AND CIVIL LAW DISTINGUISHED

The distinction between a crime and a civil wrong is not found in the nature of the act
itself, but in the legal consequences that follow it. If the wrongful act is capable of being
followed by what are called criminal proceedings that means that it is a crime wrong. If it
is capable of being followed by civil proceedings that means it is regarded as a wrong. If
it is capable of being followed by both, it is both a crime and a civil wrong. For example
if A commits,

(a) A criminal offence of assault.

(b) A civil offence of battery

THE TERMINOLOGY AND OUTCOME OF CRIMINAL AND CIVIL

PROCEEDINGS

(A) CRIMINAL PROCEEDINGS.

In criminal proceedings a prosecutor prosecutes a defendant, also called as a

prosecutor witness. He is called complainant.
If the prosecutor is successful it results in a CONVICTION of defendant after
a verdict or finding of guilty. When convicted Accused /defendant is now
known as a convict. After conviction the court may deal with the defendant
by giving him a custodian sentence eg. Prison or a non custodial sentence

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 such Probation.

(B) CIVIL PROCEEDINGS.

In civil proceedings, the complainant is called plaintiff and he is the one who
brings an action against a defendant. If the plaintiff is successful this ends in
court entering JUDGMENT, and ordering the defendant to pay debt owed to
the plaintiff or money damages. Alternatively, it may require the defendant to
transfer property to the plaintiff or to do or not to do something (injunction) to
perform a contract (specific performance). Some of these remedies are legal
and others equitable.

When plaintiff wins the case he becomes a judgment creditor and losing party
becomes judgment debtor i.e. if the outcome requires one party to pay the
other.

COST: refer to litigation costs

OTHER RELIEF AS COURT MAY SEE FIT: refers to interest and any
other justifiable or equitable remedies that court is allowed to make in the
interest of a fare an equitable outcome.

SOURCES OF ZAMBIAN LAW

The meaning of source of law

The expression ‘source of Law’ can mean several different things. It can refer
to the historical origins from which the law has come, such as common law
and equity. Secondary, it can also refer to the body of rules which a judge will
draw upon in deciding a case, and where these rules are to be found. Thus
there are four legal sources of law, namely custom, judicial precedent,
legislation and common law and equity.

Law may be classified by reference to its source, e.g. the means by which the
law is brought into exercise. Also by reference to the subject matter of the
disputes and the legal consequences which result from the dispute. Law may
also be classified by reference of its source.

Sometimes other meanings are attributed to the term Source of Law. The
literary Source describes where the law is physically found, i.e. in law reports
and statutes. The formal source describes the authority which gives force to
the rules of law. I.e. the state. The Historical Sources are generally regarded as
common Law and equity. It can also refer to body of rules which a Judge will
draw upon in deciding a case, and where these rules are to be found.

HISTORICAL SOURCES

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 COMMON LAW AND EQUITY
Since Zambia is a former British colony, most of her law is based on English
Law. In this regard, it becomes necessary to look at the source of English law.

1. COMMON LAW

Prior to 1066 there existed a primitive legal system based on local custom. The effect of
the Norman Conquest was to set in motion the unification of these local customs into one
system of law with the king as its head. The system was common to all men and for these
reasons was known as “common law”. The king would go round the country together
with his itinerant judges to hear disputes throughout the land based on local customs; this
was through his CURIA REGIS or king’s court. Although called a court it had legislative,
administrative and judicial functions. It was therefore the predecessor of British
Parliament and courts. It originally consisted of the King and his tenants in chief. These
were men and to whom land had been granted in return for some service such as the
provision of men or arms. The common law was a harsh and rigid system and had certain
defects such as:

a. The writs system:

Writs were issued by the clerks in the chancellor’s office. In order to bring an action in
one of the kings’ court, the party wishing to do so had to obtain from form the chancery a
writ for which he had to pay. A writ was a sealed letter issued in the name of the king,
and it orders some person to do whatever the writ specified. There was however only a
limited number of writs and any plaintiff’s claim had to fit into the writ otherwise it
would be thrown out.

b. Procedure:

Other difficulties arose over the procedure in the common law courts because even the
smallest error in a writ would avoid the action. If x complained of the trespass of Y’s bull
and in his writ by error described the bull as a cow, his action could not proceed and he
would have to start again.
Further more, some actions were tried by a system called a wager of law whereby the one
with most witnesses warn the case. This resulted in people becoming professional
witnesses for hire.

c. Defences and Corruption.

In common law, actions the defendant could plead certain standard defences which would
greatly delay the defendant’s claim e.g. that he was sick and this would greatly delay the
case for a year and a day.

d. Remedies

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The common law only had one remedy in civil-that of damages. That is payment of
money which is not in all cases and an adequate compensation e.g. if a trespasses each
day on b, and b is unlikely to be satisfied with damages, he would rather stop a from
trespassing.

E Trusts and mortgages.....

2. EQUITY

The early common law was rigid and harsh. Equity evolved as a mitigation of
the harshness of the common law. It was not a substitute of common law, but
equity complemented common law. Those persons who felt unhappy and
dissatisfied with the common law would petition to the King as the “Fountain
of Justice” who could exercise royal prerogative as he sort fit. For a while a
King determined their petitions himself but he later delegated his functions to
his chancellor. The early chancellors were clergy men and this influenced
their decision. With the passage of time a separate court called the court of
chancery was created; its main concern was equality and good conscious in
deciding cases. At that there no fixed rules on which the court proceeded.
Gradually the court began to be guided by its previous decisions, and
formulate general principles known as MAXIMS OF EQUITY upon which it
wou7ld proceed, such as:

1. He who seeks equity must do equity

2. He who comes to equity must come with clean hands
3. Equally is equity.
4. Equity looks at the intent rather than the form.

Some of the improvements brought about by equity were:

1. Commencement of actions by petition rather than the writ in which claimant

nearly outlined his claim
2. Introduction of new remedies
(a) Injunction – an order of the court compelling or restraining the
performance of an act
(b) Specific performance- an order of the court compelling a person to
perform an obligation under a contract
(c) Rectification- the alteration of the document so that it reflects the
true intention of the parties e.g. replacing cow with bull.
(d) Rescission/Restitution- the restoration of the parties to a contract
to their pre-contrtact state of affairs.

3. It introduced new rights such as trusts, rights of the mortgagee and mortgagors.

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CUSTOM

A custom is a habit which society has followed for a great number of years. Customs are
not consciously formulated, but rather grow of themselves. In a sense custom is the
forerunner of law. Customs, which prevail in particular parts of the country, will
sometimes be recognized by the courts or may find themselves embodied in a statute.
This will then be properly called customary law, However before such recognition can be
accorded to custom, it has to fulfill the following basic criteria.

(i) ANTIQUITY: The custom must have been in existence since time
in immemorial
(ii) CONTINUITY: The right to exercise the custom must not
have been interrupted
(iii) PEACEABLE/ENJOYABLE: A custom can only exist by
common consent. It must not have been exercised by the use of
force, secrecy or permission.
(iv) OBLIGATORY FORCE: where a custom imposes a specific
duty, that duty must be compulsory and not voluntary.
(v) CERTAINITY: The limits of a custom must be certain. A custom
which is uncertain is unenforceable.

According to the Subordinate and High court’s act, a custom will be invalid if it is
contrary to any written law or the maxims of equity, good conscience and fairness .this is
called the repugnance test. In KANIK V. JAIRUS (1967) ZR 71 The Lala custom of
akamutwe was held unfair and inequitable. In Zambia the court that mainly applies
African customary law is the local court though all the other courts include the Supreme
court also apply it. See also CHIBWE V. CHIBWE (2000) Ushi custom on property
settlement in which it was held that the custom that gives nothing to the woman upon
divorce was unjust and gender insensitive and so repugnant to written law and equity and
so cannot be upheld in today’s modern Zambia. Property was shared fifty fifty.

JUDICIAL PRECEDENCE

The doctrine is based on the general principle that once the court has stated the legal
position in a given situation then the same decision will be reached in any future case
where material facts are the same. The rationale behind binding precedents is the view
that it is not the function of the Judge to make law but to decide cases in accordance with
existing rules. The requirements must be made if the precedent is to be binding:

a. It must be a ratio decidendi statement

b. The court must have a superior, or in some cases equal status to
the court considering the statement at a later date.

If these requirements are met and the material facts as found are the same, the

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 lower court is bound to apply the rule of law stated in the earlier judgment

THE RATION DECIDENDI

This is the statement of law applied to the legal problems raised by the facts as
found upon which the decision is based. Ration decidendi literally means
“reason for deciding” and is the vital element, which finds future judges.

PERSUASIVE PRECEDENTS

These are statements, which a later court will respect but need not follow.
There are several kinds of persuasive precedents.

A. Obiter dicta. There are “by the way statements made by the judge in the
course of judgment which do not form part of the judgment. There are
two types of obiter dicta:

(i) A statement based upon facts, which were not found to exist.
(ii) A statement, which although based on the facts as found, does not
form the basis of the decision.

B. Ration decidendi of inferior courts e.g. a ratio of magistrate is only

persuasive authority for a high court judge.

C. Ratio decidendi of foreign courts.

OVERRULING AND REVERSING

Precedents can be overruled either by statue or by a Superior court. Judges are

usually reluctant to overrule precedents because this reduces the element of
certainty in the law.
A decision is overruled when a judge in a different case states that the earlier case
was wrongly decided. When a decision is overruled, it ceases to exist as
precedents though the status of the parties to that particular case in which it was
seta remains unchanged. Reversing on the other hand, occurs when a decision is
altered on appeal. In this case, the status of the parties is also reserved to their
original positions before the case went to court.

DISTINGUISHING, RECONCILATION AND DISAPPROVING

(a) A case is distinguished when the Judge states that the material facts are
sufficiently different so as to apply different rules of law.
(b) Cases reconciled when the judge finds that the material facts of both cases are
so similar that he can apply the same rules of law.

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 (c) A case is disapproved when a judge without overruling an earlier case, give
his opinion that it was wrongly decided.

ADVANTAGED AND DISADVANTAGES OF PRECEDENT.

Advantages
1. Certainty: It provides a degree of uniformity upon which individuals can rely.
Uniformity is essential if justice is to be achieved.

2. Development: New rules can be established or old ones adopted to meet new
circumstances and changing need of society.

3. Detail: Is not possible to provide for the detail found in case law in a code or
statue.

4. Practicality: The rules are laid down in the course of dealing with cases; do
not attempt to deal with future hypothetical circumstances.

5. Flexibility: a general ratio may be extended to a variety of factual situations.

For example the ‘neighbor test’ formulated in Donoghue Vs. Stevenson
determines whether a duty of care is owed to a particular person whatever the
circumstances of the case.

Disadvantages:

1. Rigidity: Precedent is rigid in the sense that once a rule has been laid down is
binding even if it is thought to be wrong.
2. Danger of Illogicality: This rises form the rigidity of system. Judges who do not
wish to follow a particular decision may be tempted to draw very find distinctions
in order to avoid following the rule, thus introduction an element of artificiality
into the law.

3. Bulk and Complexity: There is so much that no one can learn out of it.

4. Slowness of Growth: The system depends on litigation for rules to emerge. As

litigation tends to be slow and expensive, the body of case law cannot grow
quickly enough to meet modern demands.

5. Isolating the ratio Decidendi: where it is difficult to find the ratio decidendi of a
case, this detracts from the element of certainty.

4. LEGISLATION

It is the most important source of law at the present day. Statues or Acts are passed
by parliament, which is the supreme law making body in Zambia. Parliament has

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 power to pass any law provided it does not go against the constitution. In practice
statues often amend, and sometime abolish established rules of common law or
equity, overrule the effects of decision of the courts, or make entirely new law on
matters which previously have not been the subject of legislation.

There are two types of legislation, alimentary and delegated legislation. Through the
legislative process. Acts of parliament start their life as Bills, which are simply
proposed legislation. Bills are either brought by Government through the relevant
ministries or they can be proposed by ordinary members of parliament hence they are
known as private members’ bill. The stages a bill goes through in parliament before
it comes law are called readings and the third reading it goes to the president for
assert or veto.

ACTS OF PARLIAMENT

Acts start as bills. When they receive presidential assent, they become Acts. The bills
can be government bills, private members or simply private bills (e.g. by local
authorities). The procedure is as follows:

The first Reading: the title of bill is read.

Second Reading: The aims of the proposed legislation are explained and vote
is taken.

Committee Stage: A standing committee of all parties examines the bill and
proposes any amendments.

Report Stage: The committee report back to the house further debate

Third Reading: The bill is in its final form and is voted upon.
The bill is then sent for presidential assent.

DELEGATED LEGISLATION (DIP 1)

This comes into being when parliament confers on persons or bodies particularly
ministers, power to make regulations for specified purposes. This is done through what is
known as an enabling Act which authorizes the delegates to make law and also delimits
their powers.

TYPES OF DELEGATION LEGISLATION

1. STATUTORY INSTRUMENTS: This is delegated legislation made by

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 ministers. This is done through rules and regulations

2. By-laws: These are rules made by local authorities i.e. councils.

Their operation is restricted to the locality.

3. Supreme court: rules on the operation of the High Court.

4. Orders in council.

5. Parliament gives power to certain professional bodies to regulate the conduct of

their members e.g. Law Association of Zambia.

ADVANTAGES OF DELEGATED LEGISLATION

(i) It saves the time of parliament, allowing parliament to concentrate on

discussing matters of general policy.

(ii) It can be brought into existence swiftly, enabling ministers to deal with
urgent situations such as strikes in an essential industry.
(iii) It enables experts to deal with local or technical matters.

(iv) It provides flexibility, in that regulations can be added to or modified from

time to time without the receipts for a new Act of parliament.
(v) The system allows the law to be enacted quickly.

DISADVANTAGES

(i) Law making is taken out of the direct control of elected representatives
and is placed in the hands of employees of government departments,
making it less democratic.

(ii) Parliament does not have enough time to effectively supervise delegated
legislation or discuss the invest of the rules being created.

(iii) A vast amount of law is created, statutory instruments out-numbering by

the amount of Acts each year.

(iv) The different forms of delegated legislation which may be produced by

virtue of one statue can greatly confuse users.

CONTROL OF DELEGATED LEGISLATION

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1. Judicial control: If a Minister, government department or council exceeds its
delegated power, its action would be held by the court to be Utra vires
(beyond the powers of) and void.

2. Parliament Control: Parliament having given the power to legislation,

can take power away at future date. Ministers are usually answerable to
parliament for the content of regulations made by their departments.
Sometimes an enabling Act will require that an instrument be laid before
parliament thereby permitting parliament debate. There is also a
parliamentary, committee, which examines and reports to the rest of the house
the various delegated legislation.

THE COURT SYSTEM AND LEGAL PROFESSION IN ZAMBIA

The Zambia legal profession is largely modeled on the British system. A person
wishing to practice law must obtain a law degree from UNZA or any other
recognized university, usually within the commonwealth. Unlike in Britain, there
is no division into Solicitors and barristers, each with its own special training.
However a person can only practice law in the High court after being admitted to
the Bar. This is after passing the legal practitioners examinations at the Zambia
institute of Advanced legal education.

COURT STRUCTURE

The Zambia court structure has basic levels. These are outlined as follows:

1. LOCAL COURTS

There are at the hierarchy of the system. In terms of precedent, they do not
make any. They are mostly entrusted with dealing with matters concerning
African customary Law, But they are also authorized to apply by-laws and
regulations promulgated under the local government act.

2. SUBORDINATE COURTS

At the next higher level are subordinate courts presided over by magistrates.
The jurisdiction of a subordinate court depends on its class rating and the type
of Magistrate sitting. Magistrate’s courts mostly deal with criminal matters
though they also deal with civil matters including matter of African customary
law.

3. THE HIGH COURT

The constitution and the high court Act provide for existence of high court of

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 judicature in Zambia. It has unlimited jurisdiction to hear and determine any
civil or criminal proceedings under any law except for those matters reserved
exclusively to the industrial Relations court. High court judges are also called
Puisine judges.

4. THE INDUSTRIAL RELATIONS COURT

This court is on the same level as the high court. However, it deals
exclusively with labour related matters. It is presided over by a chairman who
must have some qualifications as high as high court judge.

5. SUPREME COURT

This is the highest appeal able court in the country. It doesn’t have original
jurisdiction except in presidential electron petition and in any other instances
in accordance with the Supreme Court of Zambia Act. It has total of seven
judges with the chief as it heads.

FORMS OF LIABITY

1. CIVIL AND CRIMINAL LAW

There are many ways to classify law, the most fundamental destination being that
drawn between criminal and Civil law.

(a) CRIMINAL LAW

A crime is regarded as a serious wrong in society. It is regarded as a wrong done

to the state. Prosecution is usually commenced by the state although in certain
circumstances they may be brought by a private citizen with the consent of the
D.P.P.

If the prosecution is successful, the accused person is liable to imprisonment or

fines which are payable to the state.
The standard of proof in a criminal trial is that the prosecution must prove that the
accused guilty beyond any reasonable doubt. The case is referred to as “THE
PEOPLE VS. BANDA.

(b) CIVIL LAW

Civil actions are less serious wrong and directly affect individuals. They may
be brought by any person who seeks compensation for loss or injury which he
has suffered. If he is successful, he will usually be awarded damage. The

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 damages must be paid by the defendant. Their purpose is to compensate the
plaintiff for his loss rather than punish the defendant.

The standard of proof in a civil case is that the plaintiff must prove his case on
a balance of probabilities.

There are many categories of civil law e.g. contract, Tort, Property Law,
company law, commercial law, Labour law and family law.

The case is referred to as “BWALYA Vs. BANDA

JONES VS. MACADAM.

PRIVATE AND PUBLIC LAW

Private law is concerned with the legal relationship of ordinary person in

everyday transactions. It is also concerned with the legal position of corporate
bodies and associations of persons the first of which are given a special form
of legal personality. Private law included contract and commercial law, trot
family law e.g. divorce.

Public law is concerned with the constitution and functions of the many
different kinds of government organizations including local authorities and
their legal relationship with the citizen and each other. Public law is also
concerned with crime which involved the state relationship with the power of
control over the individual.

2. THE DOCTRINE OF SEPARATION OF POWERS.

The doctrine is attributed to LOCKE. It was based on his observations of

conditions in 17th Century England.

The doctrine as usually understand today is due to a French political philosopher

(Jurist) MONTESQUIEU, whose elaboration of it was based on the study of
LOCKE’S writings and an imperfect understanding of the 18 th century English
constitution.

The writings are contained in this book L’ESPIRIT DELOIS “1748”. He divided the
powers of government into three arms:

(I) Legislative
(II) Executive
(III) Judicial

He was concerned with the preservation of political liberty when he said:

“political liberty was to be found only when there is no abuse of power, but constant

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experience shows that every man invested with power is liable to abuse it and to carry
his authority as far it will go. To prevent this abuse, it is necessary from the nature of
things that one power should be a check on another.”

When the legislative and executive powers are united in the same person or body there
can be no liberty. Again the is no liberty if the judicial power is not separate from the
legislative and the executive powers.

There would be an end of everything if the same person or body whether of the nobles or
if the people were to exercise all three powers.

(a) CHECKS AND BALANCES

The doctrine urges the prevention of tyranny by the conferment of too much
power on any person or body and the check of one power by another. Although
separated they must be connected by a system of checks and balances.

The three arms of government are therefore interrelated as they act as checks on
each other.

The doctrine has received its main application in democratic countries by the
securing of the independence of the judiciary from the control of executive.

(b) FUNCTIONS OF GOVERNMENT

(1) LEGISLATIVE FUNCTION

This is the making of new laws and the alteration or repeal of the existing law.
The legislature in modern theory derives its authority from the state and its
composition and powers are to be found in the constitutional law of the state.

(2) THE EXECUTIVE OR ADMINISTRATIVE FUNCTION

This involves the general and detailed carrying out of government activities
according to law, including the framing of policy and the choice of the manner in
which the law may be made to render that policy possible. The scope of this
function is wide. It involves the provision and administration regulation of vast
systems of social services, the public health, housing, education, transport etc as
well as the supervision of defence, order and justice and the finance required
thereof, which are the original tasks of organized government.

(3) THE JUDICIAL FUNCTION

It deals mainly with the interpretation of the law and its application by rule or
discretion to the facts of particular cases. This involves the ascertainment of
disputes according to the law of evidence. The organs which the staff set up to
exercise the judicial function are called courts of law or courts of justice.

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(4) EXAMPLES OF FUNCTIONS THE THREE ARMS OF GOVERNMENT
ON TAXATION

(a) The enactment of law authorizing a new tax is a legislative function.

(b) The provision of machinery for accessing and collecting tax payable by
each tax payer is an executive function.
(c) The interpretation of tax laws is a judicial function

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