Customary Law

Customary law refers to the laws which are derived from the customs of the people. While there is no universal definition for it, attempts have been made to decipher its nature. It has been described as a body of customs which regulates the kinds of relationships between members of a community in a traditional setting. The Customary Courts of Anambra State defined it as:

A rule or body of rules regulating rights and imposing correlative duties, being a rule or body of rules which obtains and is fortified by established usage and which is appropriate and applicable to any particular cause, matter, dispute, issue or question.

The Supreme Court noted in Zaidan v. Mohosen that it is not a law which is enacted by any competent legislature in Nigeria, and yet it is enforceable and binding on Nigerians subject to it. Customary law is often referred to as local law or native law.

It is the oldest source of law which exists, existing before Nigeria was formed and even before the British arrived. For centuries, customary laws were applicable across the various territories that made up Nigeria. Customary law continues to be applicable, although with some limitations, and it is only applicable in civil matters as section 36(12) of the constitution states that all criminal laws should be written and customary laws are mostly unwritten.

There is no uniform customary law in Nigeria as even amongst communities of the same ethnic group, the laws might vary from one community to another. It is in light of this that the Supreme Court warned in Taiwo v. Dosunmu that whatever similarities might have been found between one area and another, the court can only proceed step by step and consider every alleged custom as the occasion arises.

There has been dispute as to the status of Islamic law as customary law. While some are of the view that Islamic law is not customary law and is only regarded as customary law for convenience, others believe that customary law may either be ethnic which refers to the indigenous customary laws or it may be non-ethnic which is the Islamic law. One thing is clear, that Islamic law is different from the indigenous customary laws. It is written while the others are not, it requires no proof before a court, etc. It is the Maliki school of the Moslem law which is in force in the Northern part of Nigeria.

Characteristics of customary law

Customary laws have some unique characteristics which set them out as different from other sources of law. Some of them are as follows.

1. Customary law does not owe its existence to the enactment of a sovereign or a legislature. It develops from the culture, customs, practices and tradition of the people and becomes binding upon them. For a law to qualify as customary law, it must be accepted by most of the members of the society if not all. It is a symbol of the behaviouralistic pattern of the people who are guided by the laws.
2. Customary laws are dynamic in nature, continuously changing to suit the needs of the community as the community changes and its needs changes. The Supreme Court stated in Agbai v. Okogbue that “Customary laws were formulated from time immemorial. As our society advances, they are removed from its pristine social ecology. They meet situations which were inconceivable at the time they took root.” An example of this is that while transactions in writing were formally thought to exclude customary law since the community at that time was largely illiterate, the court still applied customary law in Rotimi v. Savage.
3. Customary laws are largely unwritten, excluding Muslim law. They are gotten from the practice of the people and are often ascertained through witnesses from the community.

Muslim customary law, unlike the indigenous customary law, is largely written, more rigid and uniform and based on the Islamic faith. It is the Maliki school by Imam Malik of Medina that is prevalent in the northern part of Nigeria. The Islamic law is derived from four major sources.

• The Qur’an: This is the holy book of the Islamic religion and it contains Allah’s revelations to prophet Mohammed, who is regarded as the last and greatest of his prophets and messengers.
• The Sunna: This is derived from the life of the prophet and statements made by him handed down from one generation to the next.
• The Ijma: This comprises unanimous agreements amongst legal scholars to provide for areas not covered by the Qur’an and Sunna and to resolve discrepancies.
• The Qiyas: This is the permissible juristic analogical reasoning on situations not covered by any of the above sources.

Customary laws are to be applied subject to limitations by statutes and endorsements by the courts. It has already been previously stated that customary law can only be applicable in civil matters. In addition, customary laws which are against public policy, contradictory to any law in force or repugnant to natural justice, equity or good conscience are not applicable.

Ascertainment of customary law

There is a belief that judges should know all of the laws in existence. This belief is cemented by sections 72 and 73 of the Evidence Act which states that a court should take judicial notice of all laws. This means that once a law is stated by a party, it is not needed for the party to attempt convincing the court that the law exists. This benefit does not extend to customary law as the status is denied from customary law by section 14 of the Evidence Act. Customary laws are to be treated as a question of fact and not a question of law. And so just facts are to be proved before a court, customary laws are also to be proved by the party asserting that such a customary law exists unless that customary law has been applied by courts so frequently that it has obtained judicial notice and has become accepted by the courts. Such a customary law would not need proof.

The position was alluded to in the Gold Coast case of Angu v. Attah and the Federal Supreme court stated in Giwa v. Erinmilokun that it is a well-established principle of law that native law and custom is a matter of evidence to be decided on the facts presented before the court in each particular case, unless it is of such notoriety, and has been so frequently followed by courts that judicial notice would be taken of it without evidence required in proof.

This may be justified with the fact that there exist too many customary laws for the judges to know all of them. And worse still, judges are trained in English law and not customary law. Nnaemeka-Agu, J.S.C., in Ugo v. Obiekwe, lamented the inferior nature of the customary law which is gotten from the Nigerian culture.

Judicial Notice

Section 14(2) of the Evidence Act states that a custom may be judicially noticed by the court if it has been applied by a superior court or a court of co-ordinate jurisdiction in the same area to the extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon that custom as binding in relation to circumstances similar to those under consideration. There have been questions over how many times a customary law must have been applied before it can be judicially noticed. While in Cole v. Akinyele, the court took judicial notice of a customary law which had only been previously applied in the one case of Alake v. Pratt, another court held in Osinowo v. Fagbenro that one case alone of its application was not enough. The Supreme Court has settled this in the case of Romaine v. Romaine by stating that a custom can only be judicially noticed after frequent use in several cases, and not in one case alone.

As to the geographical location, the cases being relied upon for the custom to be judicially noticed must be from areas which share a common custom with the same area in question. In Taiwo v. Dosunmu, the Supreme Court held upon appeal that a Ghanaian customary law cannot be applied in a case in Lagos. Because a custom is binding in area A does not make it binding in area B except it can be shown that they both share a common custom.

Evidence of Customs

When a custom has not been judicially noticed, it has to be proved by the party asserting that it exists. Islamic laws are also to be proved. Provision for this is made in section 14(3) of the Evidence Act. Sections 56 and 58 state how customary laws may be proved.

56(1) When the court has to form an opinion upon a point of…native law and custom…the opinions upon that point of persons specially skilled in such…native law or custom…are relevant facts.

56(2) Such persons are called experts…

58 In deciding questions of native law and custom, the opinions of native chiefs or other persons having special knowledge of native law and custom and any book or manuscript recognized by natives as a legal authority are relevant.

From the foregoing, it can be seen that the law recognizes two ways by which customary law may be proved. It may either be proved by witnesses or by books.

Witnesses: Customary law may be proved through witnesses. The witnesses are to be chiefs or other individuals who may be reasonably expected to know the customary law of that area. The court is not obligated to accept such evidences given by witnesses, and may choose to not accept it the same way evidence to prove facts may not be accepted in cases. The court would form its own opinion based on the evidence before it. In Nwabuba v. Enemuo, the Supreme Court accepted evidence given by a traditional ruler as to the customary law of his area while in Adewoyin v. Adeyeye, the same court refused the Ooni of Ife’s testimony concerning the Yoruba customary law of his region when it was given for selfish reasons.

Books: The court may accept books which the natives recognize as containing their customary laws for the ascertainment of customary laws. This has been done in cases like Adeseye v. Taiwo where Ajisafe’s Law and Custom of the Yoruba People was relied upon and Oyelowo v. Oyelowo where Nwabueze’s Nigerian Land Law was relied upon. The court may also reject the opinion expressed in books as it did in Idundun v. Okumagba when the court doubts the validity of the law. It is not necessary that books are presented as evidence by the parties before the courts take notice of them as the Supreme Court stated in Orugbo v. Una that there is no law against taking notice of such books not presented by the parties.

Applicability of Customary Law.

Even after a customary law has been proved to be part of the custom of a group of people, it is not always applicable. Customary law is not applicable in criminal cases as long as it is not contained in any written law as stated by section 36(12) of the constitution. In addition to this, the laws providing for the application of customary law also provides that customary law to be applied must not be repugnant to natural justice, equity and good conscience and the customary law must not be incompatible either directly or by implication with any law in force. The Evidence Act also provides that any customary law to be applicable must not be repugnant to natural justice, equity and good conscience, and further adds that customary law should not be contrary to public policy if it is to be applied. The three conditions as follows are conditions which must be fulfilled before customary law is applicable.

• The rule must not be repugnant to natural justice, equity and good conscience.
• The rule must not be incompatible with any law being in force for the time being. It must not be incompatible either directly or by implication.
• The rule must not be contrary to public policy.

Repugnancy.

It is relatively easy to decide what is within natural justice and equity as natural justice refers to the principle of fair hearing while equity refers to the doctrine of equity. Any customary law which violates any of these shall be in applicable. In Guri v. Hadeija Native Authority, the Federal Supreme Court held as inapplicable a Moslem law of the Maliki school where anyone accused of being a highway robber could not stand trial to defend himself. Such a law is against the principle for fair hearing which includes that both parties should be heard, in the latin maxim of audi alterem partem.

However, it becomes a little more difficult to determine what is against good conscience. What is against good conscience to one person might not be seen as being against good conscience to another. The law usually attempts to use this as a tool to prevent customary law creating injustice. In Edet v. Essien, a customary law which gave the custody of a child fathered by a husband to another if the dowry paid by the other had not been returned was held to be repugnant to natural justice, equity and good conscience. In Mojekwu v. Mojekwu, the Court of Appeal stated that a custom which prevented a man’s female child from inheriting his property was repugnant to natural justice, equity and good conscience. It is also possible that a court would hold a customary law inapplicable in a case and hold such applicable in another case because of the facts. In Mariyama v. Sadiku Ejo, the court heard a case involving an Igbira custom which stipulated that any child born within ten months after the divorce of a husband and a wife would belong to the former husband of the mother. The court held that the law was inapplicable in that case, although it was never stated that it was repugnant. In some situations, this law shall be reasonable.

Incompatibility with any law in force.

In some states, the provision is that customary law must not be incompatible with any written law to be applicable, while in some states the law states that customary law must not be incompatible with any law in force. The former law stated that customary law was only invalid when it contradicted local enactments until it was modified in 1943. While some courts have held that the incompatibility extends to rules of common law and doctrines of equity in cases like Re Adadevoh, some other courts have held otherwise as in Rotimi v. Savage. The Supreme Court held in Adesubokan v. Yinusa that the incompatibility test includes incompatibility with English statutes of general application.

It is clear that customary law is inapplicable if it contradicts local enactments, whether expressly or by implication. Section 36(12) of the constitution has the effect of preventing the application of customary law in criminal cases. In Agbai v. Okogbue and Ukeje v. Ukeje, customary laws were not applicable because they were against fundamental human rights provided for in chapter 4 of the constitution.

Public policy

Public policy looks at what is best for the society at large. However, what is best for the society may be different to different judges. And there is also the question as to the limits which customary law should not be applied based on public policy. In Meribe v. Egbu, two women were not allowed to get married on the grounds of public policy. It was also held in Alake v. Pratt that it would be contrary to public policy to place a man’s children born outside wedlock on the same pedestal as the children born in wedlock in the sharing of his estate and in Re Adadevoh that a customary law encouraging sexual promiscuity was inapplicable. While the decision of making customary law inapplicable on the basis of public policy may easily be abused by a judge, it is an important tool in the hands of judges who care about the sustenance of society.