Abstract
Customary law is an important source of Nigerian Law. Its
influence on the Nigerian legal system is enormous. It is indigenous and
reflects the customs and culture of the people. But it is not uniform and
harmonious. It is fluid and diversified. Besides, it is not necessarily in full
conformity with the fast pace of western civilization being forced on the
entire mankind by globalization. It is inundated with multiplicity of customs
complicated by superstitions. Hence it is difficult to take judicial notice of
it without conditionality. Although the issue of subjecting these customary
laws to the validity test if they must be relied on as a source of law in
Nigeria emanates from the biased view of our colonial masters of the Nigerian
customs as barbaric, savage and superstitious, it is still worthy to note that
the nature of customary law demands that it be so tested so as to remove some
of the superstitious elements and harsh nature.
Since 1863, the Nigerian Law, which has been built on the basis
of English Law, co-exists with about 350 customary Laws, subject to the test of
validity. The 1886 Charter of the Royal Niger Company provides that in the
administration of justice, the customs and laws of the people in its territory
must be respected and upheld. The question has been; why subject our customary
laws to a test of validity? Could it be to remove superstitious and harsh
elements inherent in them? Or could it be that they lack exactness because
of non-codification? Why do courts have difficulty in taking judicial notice of
them? This is the crux of our discourse: the validity of customary law as a
source of Nigerian law.
Introduction
In examining the validity of customary law as a source of
Nigerian law, we need to examine what customary law is. Let us begin by taking
some of the proffered definitions. The great Nigerian jurist, Niki Tobi JSC
defined customary law as
“The customs, rules and
traditions which govern the relationship of members of a community”.[1]
Emphasizing acceptability, Professor Akintunde Olusegun Obilade
put it this way:
“Customary law consists of
customs accepted by members of a community as binding among them”[2]
Similarly, Professor Taslim Olawale Elias, QC CJN defined it as
“A body of customs accepted by
members of a community as binding upon them.”[3]
Okany described customary law of a community as a ‘body of customs andtraditions
which regulate the various kinds of relationship between members of the
community.’[4] Customary
law has also been described by Park to be ‘used rather as a blanket description covering
very many different systems.’ He went further to state that “these systems are largely
tribal in origin, and usually operate only within the area occupied by the
tribe.’[5]
Obaseki, J.S.C. (as he then was) in the case of Oyewumi v. Ogunsesan defined
customary law as follows:
Customary law is the organic or
living law of the indigenous people of Nigeria regulating their lives and
transactions. It is organic in that it is not static. It is regulatory in that
it controls the lives and transaction of the community subject to it. It is
said that custom is a mirror of the culture of the people. I would say that
customary law goes further and imports justice to the lives of those entire
subject to it.[6]
Ndoma Egba in Aku v Aneku defined it as:
The unrecorded tradition and
history of the people, practiced from the dim past and which has grown with the
growth of the people to stability and eventually becomes an intrinsic part of
their culture. It is a usage or practice of the people which by common adoption
and acquiescence and by long and unvarying habit has become compulsory and has
acquired the force of law with respect to the place or the subject matter to
which it relates.[7]
By all the above definitions, we can simply see customary law as
law that emanates from the customs, traditions and way of life of a distinct
group of people and which is not only acceptable to them but also regulates
their conduct.
Nature of Customary law in Nigeria
Customary law consists of the indigenous customs of traditional
communities.
Every ethnic group in Africa has evolved its own discrete
customary legal system of rules that are binding on its members. Unlike
ordinary social habits and observances, the rules carry along with them local
sanctions for their breach. For the most part, the rules are unwritten, though
efforts are now being made to compile them in written form. Customary laws are
not uniform across ethnic groups. Differences in the customary laws of ethnic
groups can be traced to various factors such as language, proximity, origin,
history, social structure and economy. For example, the customary law system of
an ethnic group in one town may be different from the customary law system of
the ethnic group in a neighbouring town even though the two ethnic groups speak
the same language. Thus, among the Gokana language group in Rivers State,
Nigeria, it is possible to identify component ethnic groups such as the Gokana
and the Eleme, each with its separate customary law system. Generally, the
customary law rules among ethnic groups speaking a common language tend to be
similar, but the rather significant differences that can sometimes exist make
it misleading to speak of a uniform customary law rule applicable to all
members of the language group.
Customary law is not static. It is dynamic and its rules change
from time to time to reflect changing social and economic conditions. As noted
in one judicial decision, “one of the most striking features of native custom is its
flexibility; it appears to have been always subject to motives of expediency,
and it shows unquestionable adaptability to altered circumstances without
entirely losing its character.”[8] Like
any system of unwritten law, customary law has a capacity to adapt itself to
new and altered facts and circumstances as well as to changes in the economic,
political and social environment. Thus, it has adjusted to such influences as
the introduction of European and other foreign legal systems in Africa,
urbanization and the growth of a money economy. This dynamism of customary law
is illustrated in customary law rules about land ownership where it is now
possible to own land individually unlike earlier times where land belonged to
the family as a group and no individual could own a piece of land absolutely or
sell it.
Another serious nature of the customary law in Nigeria is that
since it emanates from the customs and traditions of the people, it tends to be
superstitious and barbaric in certain aspects. Examples include the caste or
OSU system in Igbo land.
The necessity of Customary Law
as a Source of Nigerian Law
English law is still a substantial part of Nigeria law. Taking
into account the biased view of the Colonial masters to our customs, it would
have been more convenient for them to discard customary law in its entirety but
rather even before the full commencement of the colonial administration in
Nigeria, The 1886 Charter of the Royal Niger Company provides that in the
administration of justice, the customs and laws of the people(s) in its
territory must be respected and upheld. This may be as a result of the fact
that the colonial administration sees the necessity of the customary law to
ensure social order and regulation. In actual fact, customary law and customs
and its enforcement was the only legal system that existed among the indigenous
people before the arrival of the Europeans. To this end, it will be nearly
impossible to eradicate a system that has sustained the people for hundreds of
years.
A major area in sociology of law is the examination of the
influence(s) of social processes upon law and customs and vice versa. In a
social system, there exists a bundle of norms: legal, moral, religious,
political, traditional, etc. Among these norms, legal and moral norms are
distinct as their roles in the social system are particularly significant and
important. Moral and legal norms (usually referred to as social norms) are the
basis for social order and regulation. Social norms exist to solve perceived
problems or difficulties and as new conditions arrive, society adapts itself to
deal with new situations. This is consistent with the dictum of Bairamian, F.
J. (as he then was) in Owouyin v. Omotosho[9] and
Obaseki, J. S. C. in Oyewumi v. Ogunsesan[10] that
customary law is an organic norm(s) of the people regulating their behaviour
and transactions. It is organic in that it is not static; it is regulatory because
it guides and controls the
lives and transactions of the people subject to it. Some researchers have
opined that customary law regulates the lives of about 80% of Nigerians. And
this is why it is being argued that Nigerian courts should enforce customary
laws.
From the above, it becomes necessary that customary law remains
a source of Nigerian law not only because of its effectiveness in maintaining
social order and regulating peoples conduct but also so as to complement other
sources of law where they seem inadequate or unavailable. It is in line with
this that the constitution provides a basis for it in section 315(3) – (4)(b)
and (c).[11]
The validity test of Customary
Law in Nigeria
The validity test of customary laws in Nigeria could be said to
emerge from the decision in the case of Eshugbaye Eleko v. Government of
Nigeria (1931) in which case, Lord Atkin said:
“The court cannot itself
transform a barbarous custom into a milder one. If it stands in its barbarous
character it must be rejected as repugnant to natural justice, equity and good
conscience.”
It is based on this that the position of the law is that in
addition to the establishment of customary courts, every High Court in Nigeria
is empowered to observe and enforce the observance of every customary law of
the people in the area of its jurisdiction provided:
(i) That the customary law is not repugnant to natural justice,
equity and good conscience, and (ii) That such customary law must not be
incompatible either directly or by implication with any law for the time being
in force. The provisions of section 16 of the Evidence Act Cap 214 Laws of the
Federation of Nigeria 2011 states clearly that:
“Provided that in case of any custom relied upon in any judicial
proceeding, it shall not be enforced as law if it is contrary to public policy
and is not in accordance with natural justice, equity and good conscience.”
It was against this background that the British subjected our
customary law to test to remove superstitious and harsh elements – and to
conform it to the universal standard of morality. This explains why Elias has
argued that the doctrine of repugnancy has positive effect on the development
of our customary law by the elimination of gross injustice inherent in its
application Uwais, J. S. C. in Okonkwo v. Okagbue and Ors (1984) has argued
that:
equity in its broad sense, as
used in the repugnancy doctrine is equivalent to the meaning of ‘natural
justice’ and embraces almost all, if not all, the concept of good
conscience…………
The logic here is that a good custom or law must conform to the
universal concept of what is ‘good, just and fair’ and this is consistent with
section 36(1) of the 1999 Nigerian constitution. There is something wrong if a
man reaps where he did not sow. This was the issue in Mariyama v. Sadiku Ejo
(1961) and Okonkwo v. Okagbue and Ors (1984). In the former, the customary law
of the area was that a child born within 10 months after divorce belonged to
the divorced husband. On appeal to the High Court, the decision was reversed on
the ground that the law was repugnant and the child should be returned to its
natural father. In the latter case the Supreme Court declared the custom of
‘women to woman marriage’ repugnant. In both cases, issues of morality and good
conscience influenced judgments. It was immoral to deprive a natural father of
his right to his right to his child. A marriage of ‘woman to woman’ negates the
principles of marriage, though new developments are emerging on the issue of
same marriage.
There is no known repugnancy case that has been decided on the
basis of conflict with any other law. Rather, all repugnancy cases were decided
by reference to the universal standard of morality which in human transactions
is founded on what is ‘good, just and fair’. They were, in fact, decided mostly
on moral law. The operation of the repugnancy doctrine in determining the
applicability of a customary law should be seen, therefore, only as an
instrument used by the British to bring our customary law – as indeed any other
law – within the acceptable objective standard of moral law currently
recognized by all nations.
No comments:
Post a Comment
Leave your comment below