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.
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. 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. 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.
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.
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.
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.
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