Customary law is among other laws the most controversial and as a result raises a lot of questions among legal luminaries. There are whole lots of reasons responsible for these and this research shall take time to address as many of these causes or reasons as possible. To add salt to injury, the few authorities of customary law that still hold sway customary sources (in explaining the inconsistencies of the law of custom) agrees that “all laws are custom but not all custom is the law” This job has been made easier thanks to Dr. B. O.
Adediji (Reader) an erudite scholar of the law, who practically gave the entire outline of the course that this research must sail (table of content) To display my scholastic content I have laid it on myself to provide nine court decided cases relating to customary law in addition to the original task required of me by my amiable lecturer. In addition, this research shall also identify limitations of customary law and also proffer workable recommendations that are potent to assail the problems confronting customary law in Nigeria. 1 2. WHAT IS CUSTOMARY LAW IN NIGERIA?
Hon Justice Narebor (1993) gave a definition of customary law to be: … a rule of conduct which is customarily recognized adhered to and applied by the inhabitants of a particular community in their relationship with one another within or outside the particular community and which has obtained the force of law, in that non-compliance with the rule or custom in question attracts adjudication and possible sanction. The definition above bears close resemblance to that given by Allen (1939) while analyzing the Gold Coast Colony Native Administration Ordinance 1927.
Said he, Native customary law means a rule or a body of rules regulating rights and imposing correlative duties, being a rule or a body of rules which obtains and is fortified by established native usage and which is appropriate and applicable to any particular cause, action, suit, matter, disputes, and includes also any native customary law recorded as such … When the two definitions given above are seriously considered, it will be detected that customary law consists of customs accepted by people in a community as binding among themselves.
Customary law according to Mukoro (2004) while speaking about the Evidence Act of Nigeria Section 2, sub-section 1 of 1990 said that customary law is the rule in a particular area that has attained the force of law due to prolong usage. Both Elias (1977) and Badaiki (1997) see customary law as a body of customs, accepted by members of a community as binding upon them. In summary therefore customary law possesses the following characteristics: 1. A mirror of accepted usage or culture of the people that observe it 2. Flexible (elastic), organic (not static), regulatory and a living law of the indigenous people subject to it 3.
Largely unwritten – either wholly or partly unrecorded 4. Long and unvarying habits and in existence at the material time, not dead ashes or customs of by gone days. 5. Accepted as a custom of universal application and enjoying the assent of the community, etc. 2 3. TEST OF CUSTOMARY LAW From the above characteristics, it is obvious that customary law is of a varying nature, the source of customary law is majorly from custom through human being. The anthropomorphic nature of this source therefore necessitates the fact that customary law vary across space and time.
It is therefore important that every custom that shall parade itself as law must pass the following tests in which failure in one is failure in all… for the test that states that one also state all. (a) The Repugnancy Test: The repugnancy test of the evidence Act of the laws of Nigeria states that a court should not enforce as law a custom which is repugnant to natural justice, equity and good conscience. Therefore, no customary law should obstruct the rules of natural justice like the right to be heard, liberty and freedom of association.
(b) Incompatibility with Local Enactments: Although it has been established that both statutory enactments and customary laws are sources of law in Nigeria, the “incompatibility test” has undoubtedly ranked local enactments above customary law. This means that customary law which is not compatible with any existing enactment ought not to be enforced by the courts. The argument is that existing customary laws must not be incompatible with any written law (Obilade 1991). (c) Public Policy Test: This means that a custom shall not be enforced if it is contrary to public policy.
The idea of public policy here implies the principle of judicial legislation or interpretation founded on the current needs of the community. Anything that offends morality is contrary to public policy. That is moral values and ideas which are prevalent in a society as a way of preserving its interest. Where a transaction is contrary to the policy of the laws or public policy, the law refuses to enforce or recognize it on the ground that it has a mischievous tendency so as to be injurious to the interests of the state or the community. This law is predicated on the interest, be it welfare, safety or advancement of the society at large.
3 4. MAKERS OF CUSTOMARY LAWS Before delving into the issue of those who make customary laws, I would love to employ the expertise of a professional—Osborn C. J. Osborn pointed out one hundred years ago (1908) in Lewis vs. Bankole still afflict the customary law today. Indeed, it is increasingly more complicated as the society transforms from a simple socio-economic and homogenous life upon which most of the rules evolved into a complex heterogeneous modern living. Furthermore, it is more difficult to determine the circumstances in which the custom in one area may bind another area.
Proof may grow more difficult because custom, as a question of fact, does not depend on judicial reasoning and activism. It must be proved by strong evidence. The burden of proof lies on those who assert that a particular customary law exists. The role of the court is simply to accept or reject it. The following are prominent asserters of customary laws: 1. Expert evidence and opinion e. g. evidence of Kabiyesi, Offor, or Oba, Emir or native chiefs who possess special knowledge of the subject matter.
2. Evidence of credible witnesses e. g.evidence of persons who are sufficiently acquainted with the custom. 3. Assessors: Persons with local knowledge and duly appointed assessors may assist with their knowledge. 4. Writers: Text books, manuscripts that are recognized by the subject people may be used in evidence. 5. Judicial Notice. The evidence Act provides that custom may be established as judicially noticed or evidence may be called to establish what a custom is and the existence of such a custom and to show that persons or a class of persons concerned in the particular case regard the custom as binding upon them.
Customary law consists of customs that are accepted as legal requirements or obligatory rules of conduct; practices and beliefs that are so vital and intrinsic an 4 art of a social and economic system that they are treated as if they were laws. It is not enacted but grows or develops with time. It expresses itself not in a succession of words, but in a course of conduct. It has no definite authors; there is no person or defined human agency one can praise or bless for its being good or bad (L. Fuller, 1968).
Every customary law was once a custom; it is not every custom that is customary law. The reason is that customary law has certain unique features. They also have their problems. It is a matter of fact to be proved by strong evidence unless it is already judicially noticed. A custom or taboo becomes law if it is: – In existence from time immemorial (i. e. or as at 1189) – Exercised continuously within that period – Exercised peaceably without opposition – Obligatory – Capable of precise definition – Consistent with other customs – Reasonable.
From the foregoing, it is therefore clearly stated far from the grasp of doubt that no one and nobody can take the glory for making customary laws but such laws self-generate in the course of time through culture and other particles that form the way of life of the people. Rules, norms and conventions develop in response to exogenous shocks through a natural process of selection and evolution; such that leaders of the people to whom the honour of making of customary laws is accorded does nothing more than assert the laws that they did not make.
5 5. EXAMPLES OF CUSTOMARY LAWS Touching the application of customary laws, I should quote the words of Osborne C. J: “the court cannot by itself transform a barbarous custom into a milder one. If it still stands in its barbarous character, it must be rejected as repugnant to natural justice, equity and good conscience. ” At this point I would love to make some diversion from the heading of this segment. I believe that this heading (examples of customary laws) suggests the application of customary laws to various aspects of life.
It must be noted that no singular researcher can exhaust the entire sphere wherein the tentacles of customary law have gained relevance; with this understanding therefore, it has to be specified the extent of the scope of this research as touching the matter in question. In a nutshell the scope shall extend only to the following areas of life with reference to certain regions precisely Yoruba, Igbo, and Hausa. “Customary law is rooted in the history, tradition and culture of the people that sometimes it is interchangeably used with custom”. a) Land holding in various parts of Nigeria. b) Inheritance. c) Marriage. A.
LAND HOLDING The case of land holding is one of the cruxes in which local government through bye-laws and traditional rulers through customary laws have been made to resent each other the most. This is as a result of the inconsistent provisions of the constitution: beginning with the 1979 constitution that made the matters of local government in Nigeria a federal matter provided for local government to in charge of land which was and still is under the jurisdictions of the traditional rulers. This issue degenerated into a big fight and it didn’t come as a surprise to many why the good 1976 local government reform failed.
However, the 6 government through the military in 1984 tried to correct this anomaly by rolling out another reform (Dasuki Report) that can accommodate the traditional rulers. All of these arguments notwithstanding, the land use act of 1978 section 1 subsection 1 which the constitution also recognizes states that “all Lands belong to the government. ” However, customary adjudication is not based on rules and laws in the same way that formal legal systems are structured. Customary practices are fluid because they are socially embedded and are based on evolving local social and political relations.
The custom provides that the land is not a personal property but can be owned only by family, to be administered by the head of the family and on no occasion can such land(s) be transferred. Also custom is also in accordance with Quid Quid Plantatur Solo Solo Cedit i. e he that owns the land owns all the things on the land even to the skies and beneath the land. B. INHERITANCE It is significant to observe that lives of a majority of Nigerians are governed by customary laws. Not surprisingly about 80% of disposition of property are settled under customary law.
The fact that many states do not have appropriate laws to deal with intestate succession has also increased the application of customary laws in distribution of real and personal property. Since customary laws are generally heavily weighted against women, their rights of inheritance suffer unduly in the face of systematic gender discriminatory and oppressive rules. It should be noted that customary laws recognize the will provided by the deceased, which brings us to the classification of inheritance into categories under customary law: the testate and the intestate inheritance.
THE YORUBA SYSTEM Generally, under the Yoruba customary law, it is the children of the deceased, whether male or female, who are entitled to succeed to the deceased father’s property on his death intestate to the exclusion of other relations. 7 The property is shared among the children, either equally per capita (“-ori jori”) or per stipe (“idi-igi”) where the deceased man has more than one wife. In Sule vs. Ajisegiri, it was held that the partition must be equally between those entitled regardless of sex. Thus, the defendant’s claim that being a male he was entitled to a larger share was rejected.
In contrast, a wife has no right of inheritance in her deceased husband’s estate. Under customary law marriage, the widows form part of the estate of their husband. As Jibowu, F. J. observed in Suberu vs. Sunmonu “It is a well settled rule of native law and custom of the Yoruba people that a wife could not inherit her husband’s property since she herself is, like a chattel, to be inherited by a relative of her husband”. The Administration of Estate Law 1958 applicable to the whole Yoruba land, which gives spouse’s right to succeed to each other’s property, does not apply to persons subject to customary law.
THE IGBO SYSTEM In the vast majority of Igbo communities, the family grouping is strictly patrilineal. Thus, inheritance is based on the principle of primogeniture; that is, succession by the eldest son, known as “Okpala” or “Diokpa”. Where the deceased is a polygamist and has many sons from several wives, the eldest sons of each of the wives may take part in sharing of the intestate. However, daughters and wives have no right to succession to their father’s movable and immovable property.
As has been stated: “Personal property including wives and slaves descends to the eldest son as heir, or failing a son, to the oldest brother or male relative” Basically, wives do not inherit because of the customary notion that women are property and, therefore, object of inheritance themselves. A long line of authorities has firmly established this principle. In Nezianya vs. Okagbue, the Supreme Court of Nigeria, held that: “Under the native law and custom of Onitsha, a widow’s possession of her deceased husband’s property is not that of a stranger and however long it is, it is not adverse to her husband’s family and does 8 not make her owner; she cannot deal with the property without the consent of his family.
She cannot by the course of time claim the property as her own, if the family does not give their consent, she cannot it would appear, deal with the property. She has, however, the right to occupy the building or part of it, but this is subject to good behaviour. Further, the court stated that no equity arose in the widow’s favour through her long possession, it having been acquired by her qua member of her husband’s family with consent (actual or implied) of his family”. Daughters, like wives, do not inherit under Igbo customary law.
The only situation where a daughter can inherit is where, for example, she chooses to remain unmarried in her father’s house with a view to raising children in the father’s home. This is known as “nrachi” or “Idegbe” institution. It usually happens when a man left on death a substantial estate, but no surviving sons or other male issue of the lineage to inherit it. The idea behind this practice is to save the lineage from extinction. The daughter, as an “idegbe” or “nrachi” is entitled to inherit both movable and immovable property of her deceased father’s estate. The legal interest vests in her until she gives birth to her own children.
However, if she bears sons and daughters, the sons and not the daughters, will succeed her in accordance with the rule of primogeniture. If there is no surviving father or brother, the half-brother will inherit but a sister or half-sister can never inherit. In a situation where a wife dies before her husband, succession is as follows: the sons will inherit, failing sons, husband. The wife’s property like money, cattle, yams and other important chattel goes to the sons or husband as the case may be, while the daughter inherits what is regarded as feminine properties, for example, jewelry, domestic utensils, dresses, cocoyam and livestock.
9 HAUSA SYSTEM Succession rights under Islamic law are mathematically laid out in the Qur’an. Under the law, wives and daughters are entitled to participate in the sharing of the estate of their deceased husband or father. When there are children or other descendants, the widow’s portion is one-eighth of the deceased estate. If there is more than one widow, the one-eight is shared equally amongst them. A woman without any child inherits one – quarter of the deceased husband’s estate. The following are the primary heirs and their shares: a. Father, one-sixth (1/6) b. Grandfather, one-sixth (1/6) c.
Mother, one-sixth (1/6) with a child and one-third (1/3) without a child. d. Grandmother, one-sixth (1/6) with a child and one-third (1/3) without a child. e. Husband, one-fourth (1/4) with a child and one-half (1/2) without a child. f. Wife or wives, one-eighth (1/8) with a child and one-fourth (1/4) without a child. g. Daughter, half (1/2) when alone, and two-third (1 /3) if more than one son. h. Son’s daughter, howsoever like above. i. Uterine brother or sister, one-sixth (1/6) if one, one-third (1/3) if more. j. Full sister, one-sixth (1/6) when alone, and two-third (2/3) if more. k.
Consanguine sister, half (1/2) if one and two third (2/3) if more. From the above comparison on inheritance, one readily finds that the issue of inheritance in relation to customary law varies from place to place which poses a threat to the application and acceptance of customary laws. 10 C. MARRIAGE The official initialization of the union of two persons to become one–for the purpose of family, procreation, protection and preservation of lineage and origin. Marriage in Yoruba land During the 19th century there has been different ways through which traditional marriage are being processed.
The man and the woman makes their choice in a diverse way, husband and wife could meet in so many ways, this could be outlined below: 1. Through connections: this could be regarded as what we call “matchmaking” whereby parent of both husband and wife advise them to marry each other even husband and wife seems not to love each other, the both side parents agree that their children marry each other– mostly it starts from when the husband and wife to-be are newly born, they are made to grow up together in the same environment with the awareness that they are couples. 2.
Through intermediaries: this type is familiar with the olden days; the would-be couple is not allowed to pay themselves a visit, an intermediary is sought who help both parties deliver their messages one to another. 3. Through invitation: this is a friendly means through which a woman who is married invites her single friend to become the wife of the younger or elder brother to her husband as the case may be. In some cases the Yoruba permit the husband to kidnap the wife in case the wife is not co-operating with the process. This is repugnant to natural justice, equity and good conscience.
Marriage in Igbo land After a period of courtship, the groom to-be’s family will visit the bride to-be’s family to be introduced and state their intention. The groom to-be will usually visit with immediate family members. If immediate family is not available, any older relative and friend is also acceptable. Once this is done, the groom to-be’s family will leave and return at an agreed upon-time. During this time, it gives the bride to-be’s family the opportunity to “investigate” the groom to-be’s family (if necessary) and also prepare for the next step.
When the groom to-be’s family returns, they will bring wine, drinks, food and kola nut, etc. as gift for the bride to11 be’s family; they will then again state their intention with concerning the bride tobe. Usually, at this time, the bride to-be is in another room. When the intention is stated, the bride to-be will come out and confirm that the groom to-be is someone she is interested in marrying. As a symbol of hospitality and acceptance, kola nut is used by the elders for a ritual during the prayer and blessing. Once this is completed, it is also passed around to others to eat.
The foods and drinks will be served to show unity and good faith. At this time, a gift list is also presented to the groom to-be’s family. This list can include anything from item of food to gold watches, expensive fabrics, depending on the family of the bride to-be. These items must be brought to the traditional marriage ceremony, and then a date will be fixed for this ceremony. Marriage in Hausa land The Hausa practice very strange cultural marriage these include: 1. Junior levirate: whereby a younger brother may marry his late elder brother’s wife or wives.
2. Sororate: this is where a man can marry his late wife’s sister. 3. Polygyny: is also very popular among the women who are Muslims, this is a special type of concubine practice. 4. Others: other types of marriage include cousin marriage known as Auren Zumunta, whereby a man could marry anyone from his cousin. Among the Hausa Fulani pagan nomad “wife lending” and other strange customary marriage system are practiced which is not only repugnant to natural justice, but also repugnant to equity and good conscience. 12 6. CASES ON CUSTOMARY LAW.
For every cases held in court that bears resemblance with customary law and litigation, the supreme test that guarantee that a customary law qualify to be called one is revisited i. e. the repugnancy, Incompatibility with Local Enactments and public policy test. The following are court decided cases on customary law: I. II. III. IV. V. VI. Moriamo vs. Sadiku Ejo– the customary law that allows that a child born to a woman after 10months of divorcing her husband belongs to her former (divorced) husband was rejected by the court. It was held to be repugnant to natural justice, equity and good conscience.
Meribe vs. Egwu—the customary law that allows two women to get married to each other in the eastern Nigeria was held repugnant to natural justice, equity and good conscience. Edet vs. Essien—the customary law that allows for a man to take over the children of another man given birth to by his former wife for another man. The man claim that since the present husband of his former wife had not returned his dowry to him, the children his former wife had for him belongs to him was held repugnant to natural justice, equity and good conscience.
Guri vs. Hadejia native authority—the customary law of the northern part of Nigeria which disallows a man to defend himself for being charged for armed robbery (Hiraba) was held to be repugnant to natural justice… Dawodu vs. Danmole—the Yoruba customary law of inheritance according to polygamy (per stipes) “idi igi” as against “ori oju ori” per head or per capita, which applies to a monogamous marriage was x-rayed in this case. The court held that Idi igi was repugnant… In Cole vs. Akinyele—proof of legitimacy by paternity was x-rayed.
Right now there is no more “illegitimate child” under the 1999 constitution irrespective of the circumstances surrounding the birth of that child. It was held by the court that proof of legitimacy by claiming the paternity of a child could lead to promiscuity, which was contrary to public policy. 13 VII. VIII. IX. X. Amakiri vs. Kallio—the plaintiff claimed to have exclucive fishing rights in an open navigable river as against any other person. The customary law was held to be contrary to public policy. Ukeje vs.
Ukeje—the customary law that forbids a woman from inheriting her father’s estate was held to be incompatible with the 1999 constitution, particularly the fundamental right of freedom from discrimination. Agbai vs. Okagbu—the plaintiff filed a suit against the defendant who raided his shop and took away is sewing machine for the former’s refusal to join their tailoring association, which the plaintiff perceived to be an occult society. It was held that the 1979 constitution protects the right of the plaintiff, that he had the right to association and could not be forced to join any association against his wish.
It was held incompatible with the written law, particularly the constitution. In Mojekwu vs. Mojekwu– According to Justice Niki Tobi, who delivered the lead judgment: All human beings – male and female are born freely and it is the monopoly of God to determine the sex of a baby and not the parents. Although the scientific world disagrees with the divine truth… for customary law to discriminate against a particular sex is to say the least an affront to the Almighty God Himself. Let nobody do such a thing.
On my part, I have no difficulty in holding: unconstitutional and antithetic to a civil society built on the tenets of democracy. 14 7. LIMITATIONS OF CUSTOMARY LAW According to the popular paradigms of economic analysis, decentralized market processes have a comparative advantage over centralized allocative mechanisms in the creation of efficient equilibria. Customary law formation can be analogized to a decentralized decision making process, with a comparative advantage over centralized processes in the creation of efficient rules.
Customary rules are generally accepted by the community, with a larger share of rules followed spontaneously by the community and a consequent reduction in law enforcement costs. In the decentralized dynamic of spontaneous law, individual decision-makers directly perceive the costs and benefits of alternative rules, and reveal their preferences by supporting or opposing their formation. The formative process of customary law proceeds through a purely inductive accounting of subjective preferences. Through his own action, each individual contributes to the creation of law.
The emerging rule thus embodies the aggregate effects of independent choices by various individuals that participate in its formation. This inductive process allows individuals to reveal their preferences through their own action, without the interface of third-party decision-makers. The analogy between customary rules and spontaneous market Equilibria, however, calls for an assessment of the potential insufficiencies of the spontaneous processes of law formation. I will proceed by setting out some hypotheses for failure and discussing their potential scope of application in the area of customary law.
The literature in this area is relatively thin and much work still needs to be done to develop a coherent theory of spontaneous law. Path Dependence and the Idiosyncracies of Customary Law Norms and conventions, vary from place to place. Any theory about the efficiency of spontaneous law should explain the diversity of norms and conventions across time and space. In my view, there are two primary ways to provide such an explanation. 15 The first is to look for idiosyncratic environmental or institutional factors which might attribute to the diversity of observed rules.
If the underlying social, economic, or historical realities are found to be different from one another, different norms or conventions should be expected. Rules, norms and conventions develop in response to exogenous shocks through a natural process of selection and evolution. This “survival of the fittest” explanation would suggest that whatever exists in equilibrium is efficient, given the current state of affairs. This belief, borrowed from Darwinian evolutionism, is pervasive in the law and economics literature, and, when applied to spontaneous law, risks becoming a tautological profession of faith.
Ironically, we should note that the originators of such a claim, socio-biologists, have now widely refuted its validity. The second way to reconcile the efficiency claim to the observed diversity of spontaneous rules is to consider the role of path dependence in the evolution of norms and conventions. Evolution toward efficiency takes place with some random component. Random historical and natural events (the random element of chaos theory) determine the choice of the initial path. This may be the case particularly where initial choices are made under imperfect information.
Evolution then continues toward efficiency along different paths, with results that are influenced and constrained by the initial random conditions. If we agree that path dependence has something to do with the emergence and evolution of customary law, we should follow this logic to its conclusion, revisiting the very foundations of the efficiency claim. The main question is whether path dependence could ever lead to inefficient results. According to current research (Roe, 1996), path dependence may lead to inefficient equilibria.
Once a community has developed its norms and conventions, the costs of changing them may outweigh the benefits. Less efficient rules may persist if the transition to more efficient alternatives is costly. Thus, if one allows for some randomness and path dependence, norms and conventions, although driven by an evolutiontoward-efficiency dynamic, may stabilize around points of local, rather than global, maximization. Our history, in this sense, constrains our present choices. 16 We may wish we had developed more efficient customs and institutions, but it would be foolish now to attempt to change them.
The claim of efficiency of spontaneous law thus becomes a relative one vis-a-vis the other sources of law. The point then becomes that of weighing the relative advantages of spontaneous law-making against the attributes of engineered legislation, taking full account of the pervasive public choice and information problems underlying such alternatives. Rational Abstention and Norm Manipulation A public choice analysis of customary law should consider the vulnerability of norms and customs to the pressure of special interest groups.
This line of analysis—relatively undeveloped in the current literature—should search for parallels between the legislative process and the dynamic of norm formation. In that setting, the opportunity for collective beliefs and customs to be manipulated by special interest groups should be analyzed. Any claim that customary sources are superior to proper legislation will have to rest on a solid understanding of the relative sensibility of each source to possible political failures. The application of a well-known theorem of public choice to the study of customary law generates very interesting results.
Unlike legislation in a representative democracy, customary law rests on the widespread consensus of all individuals affected by the rule. If principal-age