The theory of the rule of law which is now commonly canvassed and resorted to by politicians, journalists, and even lawyers to describe innominate situations seems to me much wider than the formulation of the Rule by Dicey in the late 18th century. It is different from the rule familiar to Constitutional lawyers. The principles in the rule as stated by Dicey are three. The first is the absolute supremacy of law as opposed to the exercise of arbitrary power. The second is the equality of all persons before the law. The third is that the constitution is the result of the ordinary law of the land as interpreted by the courts. It is important to bear in mind that Dicey formulated the rule of law with respect to the unwritten Constitution of England, and in relation to the nature and content of English law – common law and statutory. There is no doubt he had in mind the application of democratic principles of the Westminster style and the impartial enforcement of the laws of England. The rules enunciated by Dicey were formulated in contrast with the situation in foreign countries. Our circumstances in this country are not identical. They are peculiar. We have adopted English law as the general law. We did not abolish all our own laws and customs which govern our ways of life in many important respects. We have also adopted the principles of democracy as recognised in West European countries. Undoubtedly, these principles adopted must be applied with necessary modification and adaptation within the context of the laws adopted, recognised and applicable in our communities. Of course where any such laws are incompatible with our democratic values, they are by our Constitution to be rejected. Hence the Court of Appeal ought to have shown which of the rules of law or its variant is inconsistent with the custom being rejected. The custom applies uniformly only to defaulting members of the Age grade society. It is the law as accepted by them. It is, on the evidence, the law recognised by the community.
– Karibe-Whyte JSC. Agbai v. Okogbue (1991) – SC 104/1989
