By: Kehinde Victor Adegoke
The question as to where the grundnorm of the Nigerian Legal Order resides is a question that has over the years generated divergent views and opinions amongst various jurists and academicians. This question is of utmost importance to consider because the mere fact that the grundnorm is regarded as the overriding norm in the Nigerian Legal Order from where all other norms derive their existence and validity supports the fact that Rule of Law (constituted by rules and principles) are not only derived from the grundnorm, but can also be modified, suspended or even abrogated by it. According to a paper delivered by Prof. I. E. Sagay, the learned scholar made it clear that the question is:
whither resides the grundnorm in the Nigerian Legal System which has the awesome power, to abrogate the fundamental rights which Nigerians as a whole have acquired and consolidated over a period of about one hundred and thirty years?
The learned scholar further observed that only if this question can be answered, can it be determined whether or not there is invested in any entity, the power to suspend fundamental rights, to oust the constitutionally granted jurisdiction of the courts either particularly or generally, or to detain Nigerians without trial and without the right to challenge such detention in a Court of Law. He completed his statement by saying that
If this fundamental question is avoided or evaded, then we may have well embarked on a hollow exercise. For if these rights can be taken away lightly and frivolously, we might as well not have them at all, much less discuss them.
It is noteworthy that the major protagonist of the grundnorm theory is Prof. Hans Kelsen. His major theoretical work gave rise to the controversy as to whether there is, and if there is where does the grundnorm reside in each legal system. Kelsen’s theoretical work is called the “pure theory of law”. His pure theory of law was essentially concerned with presenting a formal structure of law so as to enable us understand the nature of law and state. To that extent, Kelsen was essentially a positivist. This simply means that his theory was based on the law as it is and not as it ought to be. This feature he shares with Austin who was before him.
Kelsen’s pure theory of law shuns the study of law and the science of jurisprudence of irrelevant factors such as ethics, politics, sociology, psychology, history etc. Kelsen believes that a knowledge of law is the same as a knowledge of norms and a ‘norm’ is a proposition in hypothetical form. It is an “ought” proposition which expresses not what is or is done or must be done, but what ought to be, given certain conditions. In other words, its existence only means its validity and this refers to its connection with a system of norms which it forms a part.
However, a very important question is that, if a norm can only be derived from another norm, can one continue the derivation ad infinitum? Kelsen made it clear that there is always an ultimate norm on which other norms rest. This ultimate norm is called the “Grundnorm”. However Kelsen did not rule out the possibility of plural Grundnorm (that is, more than one grundnorm) but he asserts that in such an event they should not contradict each other. In essence, the grundnorm is extra-legal since it does not itself rest on any other legal norm. A whole lot of issues abound in Kelsen’s grundnorm theory which can be covered up by the personal reading of the reader.
Search for the Grundnorm in the Nigerian Legal Order
In a bid to provide an answer to the question posed by Kelsen’s theoretical work as to whether there is grundnorm and if there is where does it lie in each legal system, a number of opinions have been expressed. For instance, in Nigeria alone, about four sources have been proposed as being the source of our grundnorm, namely; the Judiciary, the Legislature, the Constitution and the Military (S.M.C. or A.F.R.C).
The major protagonist of the Judiciary school of thought is Justice Kayode Eso. He made his first attempt to propound this theory at the first Idigbe memorial lecture entitled “Is there a Nigerian Grundnorm?” given at the University of Benin on 31st of January 1985. The learned justice relied on the landmark decision reached by Adetokunbo Ademola JSC (as he then was) in the much celebrated case of Lakanmi and Another v. Attorney-General (West) and Another to establish that the grundnorm of the Nigerian Legal Order is the judiciary, by adopting a historical approach involving a shifting of the grundnorm between the Judiciary and the Military.
However, amongst other things, the Eso theory has been criticised for including the possibility of a shifting grundnorm. Among his foremost critics is Professor Abiola Ojo who argued that it is difficult to accept the idea of a shifting grundnorm within the same legal order, be it civilian or a military administration and that judicial decisions, even of the Supreme Court, are mere norms in the hierarchy of norms. According to Ojo,
The grundnorm must have no rule behind it. It is the fons et origo – the norm, one which Salmond regarded so fundamental as to be termed the legal source.
Another critic, Dr Akinola Aguda opined that:
Eso appears to have a concept of the term ‘grundnorm’ somehow different from that of Kelsen
Although Justice Eso did not totally change his position despite these criticisms, he made a few concessions by agreeing that while the Constitution is the master of the Court, its creator, the Court is de facto more powerful than its master. This is more so, since on the long run, the Constitution is what the Courts, especially the Supreme Court says it is.
Prof. Itse Sagay would not agree with Justice Eso and to him, the Supreme Court or the Judiciary cannot possibly be the Grundnorm.
Furthermore, some have also argued that the grundnorm of the Nigerian Legal Order resides in the legislature. The protagonists of this school of thought are largely unknown. While this may be true in the United Kingdom where due to her constitutional history, the Parliament has over the years wielded absolute power to declare all sort of laws, this is not the case in the Nigerian context where the Legislature is seen merely as one of the three main organs of Government which probably enjoys a lesser reputation amongst citizens compared to the Judiciary.
Also, by the provision of Section 4(8) of the 1999 Constitution,
the exercise of legislative powers by the National Assembly or by the House of Assembly shall be subject to the jurisdiction of the Courts of law and judicial tribunals established by law; and accordingly, the National Assembly or a House of Assembly shall not enact any law that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law
The most popular choice as the grundnorm of the Nigerian Legal Order is of course the Constitution. In addition to Justice Eso who though made it clear that this is with the support of the interpretative jurisdiction of the Court, Dr Aguda is a major protagonist of this school of thought. Justice Oputa can also be said to fall within this school of thought for his commentary on Justice Eso’s paper at the 1988 All Nigeria Judges Conference where he described a nations’s constitution as “its organic law”.
Furthermore, the first section of the 1999 Constitution, that is Section 1 (1), (2) and (3) declares this. However one cannot fail to mention that the tendency of the military government to overthrow the civilian government and suspend part of the Constitution (especially the ones dealing with human rights) is a major problem of this school of thought.
A fourth school of thought believes that the Military Ruling Council is the grundnorm of the Nigerian Legal Order. By the Miltary Ruling Council is meant the Ruling or Law Making Body, whatever name it is called, whether the AFRC or SMC as we had in Nigeria and not any major Decree. The major proponent of this school of thought is Professor Ojo.
Conclusion and Recommendation
The question as to where does the grundnorm of the Nigerian Legal Order resides has given rise to divergent opinions and schools of thought. The proponent of the Grundnorm theory, Hans Kelsen opined that there is always an ultimate norm on which all other norms rest, that is, the Grundnorm. However, Kelsen himself did not rule out the possibility of plural grundnorm but asserts that in such an event they should not contradict each other. This simply means that there may exist more than one grundnorm within a particular legal order, so far they do not contradict each other. Within the Nigerian context, no less than four sources have been proposed as being the grundnorm; the Judiciary, the Legislature, the Constitution and the Military (S.M.C. or A.F.R.C.).
These various sources have their proponents who have adduced convincing points to support their arguments. It will not be out of place to say that each of these proponents of the various schools of thought has convincing reasons for their positions. To say one position is totally correct at the expense of another may be fallacious. The solution therefore will probably be to follow the proposition of the major proponent of the Grundnorm theory himself, Hans Kelsen who proposed that there can of course be plural grundnorm in so far as they do not contradict each other. As a result, we can safely adopt, though in a refined manner, the argument of Justice Eso that the grundnorm of the Nigerian Legal Order is the Constitution as interpreted by the Court, particularly the Supreme Court.
It is hereby recommended, from the foregoing, that the Grundnorm of the Nigerian Legal Order, going by the proposition of the father of the Grundnorm theory, Hans Kelen are the Constitution and the Judiciary. In order words, we can argue that the Constitution as interpreted by the Judiciary, especially the Supreme Court constitutes the Grundnorm of the Nigerian Legal Order. This position conveniently aligns with the view of Hans Kelsen that there can be plural Grundnorm so far they do not contradict each other. It is unarguable that the constitution creates the court and gives it power, while on the other hand the court interprets the constitution to avoid ambiguity. This is thus a preferable answer to the question: “whither resides the grundnorm of the Nigerian Legal Order?”
Aguda, A. 1989. The Nigerian Grundnorm – A Critical Appraisal: Conference of the Nigerian Bar Association
Akintayo, J.O.A. 2017. Analytical Positivism. Jurisprudence and Legal Theory. (mimeo)
Constitution of the Federal Republic of Nigeria 1999 (as amended) CAP 23 L.F.N. 2004
Ojo, A. 1987. Constitutional and Military Rule in Nigeria. Ibadan, Nigeria: Evans Brothers
Sagay, I.E. 1993. The Supreme Court and the Rule of Law in the Third Republic and beyond. Law, Justice & Stability in Nigeria. Ed. Yemi Akinseye-George.
About the Author
Kehinde Victor Adegoke B.A. (Ife) LL.B (Ibadan) is a First Class graduate of Law from the University of Ibadan, the nation’s premier University. He also holds a degree in History and International Relations from the most prestigious Obafemi Awolowo University, Ile-Ife where he bagged a Second Class Honours (Upper Division). This work is edited by Taiye Vincent Adegoke, also a First Class graduate of Law from the premier University
You may reach the author through the following addresses:
Phone Number: +234 708 018 1494, +234 803 236 7927
 A First Class graduate of Law from the premier University of Ibadan
 1993. The Supreme Court and the Rule of Law in the Third Republic and beyond. Law, Justice & Stability in Nigeria. Ed. Yemi Akinseye-George. pp. 126-166
 Akintayo, J.O.A.2017.Analytical Positivism. Jurisprudence and Legal Theory. (mimeo). P.27
 Ibid at p.27
 Ibid at p.28
 Sagay, I.E. 1993. The Supreme Court and the Rule of Law in the Third Republic and beyond. Law, Justice & Stability in Nigeria. Ed. Yemi Akinseye-George. Pp. 126-166
 (1971) 1 U.I.L.R. 201
 Sagay, I.E. op. cit.
 Ojo, A. 1987. Constitutional and Military Rule in Nigeria. Ibadan, Nigeria: Evans Brother pp. 109-110
 Aguda, A. 1989. The Nigerian Grundnorm – A Critical Appraisal: Conference of the Nigerian Bar Association. pp. 14-16
 Sagay, I.E. op.cit.
 Section 4(8) of the Constitution of FRN 1999 (as amended) CAP 23, L.F.N. 2004
 Sagay, I.E. op.cit
 Constitution of the FRN 1999 (as amended) CAP 23, L.F.N 2004
 Sagay, I.E. op.cit
 Ojo, A.1987.Constitutional and Military Rule in Nigeria. Ibadan, Nigera: Evans Brother. p.110
 Akintayo, J.O.A. 2017. Analytical Positivism. Jurisprudence and Legal Theory. (mimeo). at p.28