Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

Nnamdi Ebo | NewsBlog

In my NewsBlog Nnamdi Ebo, I provide perspectives on news, events and analysis of unique stories, and I also offer original content, articles and photos; with contributions from some of the best minds.

 

English Law and Customary Law

HISTORY: Indigenous Negroid peoples of most of Africa and present day Nigeria lived in settlements in the early years before the advent of the Whiteman. Invariably, these settlements expanded into kingdoms and empires and as they did so, they became heterogeneous. As people moved from one cultural group to another, conflicts were inevitable. This was further advanced by migrants, travelers, explorers, traders, missionaries and war. For example, Sunni Ali and Askia Muhammad over ran the Hausa States of Gobir, Kano, Katsina and Zaria and annexed them to the Songhai kingdom. According to history, the phoenicians of the tribe of Nimrod migrated from Upper Egypt to Ile-Ife and advanced the Yoruba Kingdom eastwards to Dahomey and Benin. (1000 AD). The Portuguese Traders (1452) the British (1553) and the Dutch (1593) had by trade, treaties, diplomacy and military campaigns gained some foothold in different parts until the partition of Africa following the Berlin Conference:

The Berlin Conference

The Berlin Conference was the meeting of representatives of 14 European countries and the United States (as an observer) between 1884 and 1885 to deal with matters relating to European trade and territorial claims in Africa. At the conference, which was convened in Berlin, these powers reached agreement on who would possess lands around the River Congo, River Niger and established ground rules and justification for further takeovers. The conference was brought about by European rivalries in Africa and concerns over the European colonial balance of power. In the late 1870s and early 1880s, Leopold II of Belgium had been trying to further personal interests by employing Henry Morton Stanley to stake claims for him along the lower Congo, an area where the Portuguese Empire already had claims. On the basis of treaties negotiated by the French explorer Pierre Savorgnan de Brazza in 1880, France claimed land along the river as well. Meanwhile, on the lower River Niger, the British Empire and the French Empire were potential competitors over river trade. Merchants across Europe urged their governments to protect their African trade interests from European rivals. Under such pressure, in mid-1884 the German chancellor Otto von Bismarck announced German claims to three African colonies—Togoland, Cameroon, and South-West Africa. This increasingly frantic seizure of African territory, dubbed the ‘Scramble for Africa’, threatened to bring European nations to conflict. Bismarck, with France, called for a conference to settle European rivalries. Half of the countries represented, including the United States, had no colonial stake in Africa. However, they were invited to help sort out rival claims and to put the stamp of unbiased international approval on the territorial acquisition to come.

The conference convened in Berlin in November 1884. Negotiations concerning claims to the Congo area occurred outside the conference, in London, Paris, and Brussels, and held up matters for two months. At its conclusion in February 1885, the conference recognized Leopold’s sovereignty over an area occupying most of the Congo basin that would become the massive Congo Free State (the area of the present Democratic Republic of the Congo). It also acknowledged French claims along the east bank of the Congo that would become French Congo (the future Republic of the Congo). Portugal was left with only a small territory at the mouth of the Congo. The conference also recognized the German claims to Togoland (modern Togo), Cameroon, and South-West Africa (modern Namibia). In a final General Act of Berlin, the representatives agreed to free trade in the Congo basin and free navigation along the Niger. In addition, they agreed to rules for further claiming of African territory: each country was to notify the others of its claims, and each claim was to be followed with “effective occupation” of the claimed area. Conference participants stated lofty goals for their African territories, which included ending the slave trade and extending civilization, commerce, and Christianity to the African people.

Many myths cloud the legacy of the Berlin Conference. Many believe that the representatives of European nations parcelled out African land among themselves as they sat around a table in Berlin. Actually, European conquest of African land had been under way for some years before, and the Berlin Conference resulted only in recognition of claims along the Congo and of Germany’s colonies. Further, the rules set out for claiming territory were largely meaningless and unenforceable. Yet, the Berlin Conference holds symbolic importance. Its occurrence in a European capital, thousands of miles from Africa, without a single African present, represented Europeans’ unquestioned attitude of superiority, an attitude that underlay the Scramble and the early periods of colonial rule. Although most of Africa remained in African possession immediately following the conference, the Berlin West Africa Conference served as the first public indication that European countries were poised to take over the African continent and install their own legal and political systems, including their legal methods as well; an ambition which they would accomplish over the next 25 years.

After the Berlin Conference, Britain consolidated her dominance in her areas of acquisition; constituting the kingdoms and empires she found into the Protectorate of Northern Nigeria (1900), and the Colony and Protectorate of Southern Nigeria (1906), both of which amalgamated to form Nigeria in January 1, 1914. As mentioned above, people moved from homogeneity to heterogeneity and from one cultural grouping to another, and as they did so, conflicts inevitably arose. See Koney v Union Trading Co. 1934; and Okolie v Ibe (1958) N.R.N.L.R. 89.  During the early times, judges in England executed justice “according to the law and custom of England” and translated the custom into law. So also the British imperialists by Ordinance No. 3 of 1863 formally established in the Lagos Colony, English type of courts which executed laws and custom in the colony. The Ordinance No. 4 of 1876 expressly empowered the courts to execute:

i.) The common law of England

ii.) The doctrines of equity as applicable in England

iii) Statute of General Application as at 1st July 1874 (later varied to 1st January 1900)

  1. iv) Local enactments
  2. v) Customary laws that were not repugnant to natural law, equity and good conscience or

     incompatible with the law for the time being in force.

The indigenous local customs, traditions or practices of these settlements were not recognized by the British colonial masters. Even where custom had continuously prevailed from time immemorial and it is generally reasonable and accepted it was still required to pass the English man’s test of repugnancy and incompatibility, using the English standards. The administration of English law side by side with customary law sometimes conflicted. The result was a delimitation of the relative spheres of operation of the rules and principles of the one or the other and generally, as to the determination of questions bordering on primacy or parity as between the received English law and the indigenous customary law. The experience of Nigeria is that in constituting Nigeria into a federation (1951-4), and subdividing it into 3 region and subsequently into 4 regions (1963) and still later into 12, 19, 21, and 36 states and a Federal Capital Territory (1967-99), similarity of cultures, ethnicity and language received little consideration if at all. The British type of political arrangement still prevailed and endured overtime – as practiced by the various Nigerian governments.

See Military Governor (Ondo State) v Adewunmi;  Doherty v Balewa (1961) All N.L.R. 604; Archbishop Okogie and Ors v Governor of Lagos State (1981) 1 N.C.L.R. 218 , Iffie v AG Bendel State (1987);  AG Bendel State v Aideyan (1989);  AG Bendel State v AG (Fed) and 22 Ors (1982).

There were many laws in these communities – more especially in the urban areas of Nigeria. This gave rise to the following:

  1. i) The Indigenous native customs and traditions
  2. ii) The customary laws were accepted as such

iii)  A mixture of foreign laws and custom; each migrant group, invaders, traders,  

      missionaries, explorers etc carried along, their political organization, religion, 

      learning, laws and  customs.

  1. iv) Traditional religions proliferated
  2. v) Islam and its variant.
  3. vi) Christianity and its variant

See: Koney v Union Trading Co. (1934), Okorie v Ibo (1958), Olowu v Olowu [1985 ]3 N.W.L.R. 373

Plurality of laws permits a situation where one system applies to one transaction and another system to another. For example different laws and incidences apply to Christian and customary law marriages, as well as to devolution of property upon intestacy.

See: Cole v Cole (1898) 1 N.L.R. 15, Olowu v Olowu [1985 ]3 N.W.L.R. 373, R v Princewell [1963] 2 All N.L.R. 31

A customary law may also apply to a transaction and dispute may arise as to whether or not that law applies to the parties in the transaction. Cases involving a native and a non-native often give rise to such a problem. The approach of the court has been that the customary law would apply where statutes so provide. In other cases the test is which law serves justice better: see Lewis v Bankole (1908) 1N.L.R. 81, Edet v Essien (1932) 11 N.L.R. 47, Nelson v Nelson (1951) 13 W.A.C.A. 248, and Agidigbi v Agidigbi (1992) 2 N.W.L.R. 98

However, these rules are not absolute. They may be displaced where:

(a) The parties expressly agree that the customary law shall not apply. Sometimes the yardstick for applying customary law may differ. For example in the Northern States and Lagos State, the test for the application of a customary law is “Nativity Test”. In the Eastern States, the test is “Nigerian descent test”. In the Western States, the High Court laws provide expressly where customary should apply.

 (b) In every case, application of a customary law is displaced where the nature of the transaction does not admit customary law (c) Where the transaction is unknown to the customs of the people, customary law would not apply .Typical examples of these are statutory marriage cases.

See: Koney v UTC Ltd (1934), Queen v Owo (1936) Salau v Aderibigbe [1963] W.N.L.R. 80 and Okolie v. Ibe (1958) N.R.N.L.R. 89.

The general rule is that the customary law applies if:

  1. a) There is a native law and custom applicable to the matter in controversy
  2. b) Such law and custom is not repugnant to natural justice, equity and good conscience or incompatible with the local ordinance, and
  3. c) If it shall not appear, that it was intended by the parties that the obligation under that transaction should be regulated by statute.

In essence, customary law applies where the nature of transaction is subject to customary law, or the statute provides that customary law shall apply. It is ousted where parties expressly so agree or deemed to have agreed, the nature of transaction is unknown to customary or laws or the nature of the transaction dictates that it is to the regulated by law other than customary. Whether parties have agreed or deemed to have agreed on which law is applicable is, however, not easy to answer with any precision. Nonetheless, courts have been guided by considerations of:

  1. Interest of Justice

Where a transaction is governed by the customary law and the parties are natives, it is in the interest of justice that the customary law applies. Statute law is excluded if substantial injustice would be done to either party. Even where parties are natives and non-natives, customary law may yet apply provided it would not occasion substantial injustice.

  1. Conduct of Parties

Courts assume that in the absence of evidence to the contrary, parties for example to an Islamic marriage intend to be governed by the provisions of the Holy Qu’ran, just like parties of a Christian marriage intend to be governed by statute and British standards.

  1. Other Considerations are:
  2. i) Social welfare principles
  3. ii) Life style principles

Justice A. Aguda noted that any legislation which is expected to alter materially the social habits and values, even though meant to effect social justice can hardly be expected to succeed unless the masses are made to see the necessity for it. The reason is that cultures, tradition, social habits and values die hard, and it must be a mistake to attempt to alter, modify or abrogate any of them without sufficiently preparing the minds of the people for the change to come. This, in part, explains why the Northern states of Nigeria jettisoned the Criminal Code and the Criminal Procedure Act in 1959. Instead, they opted for the Penal Code and the Criminal Procedure Code like those of Sudan and India and of the Maliki School.

No references & footnotes in this online publication. Checkout references & footnotes in the book.
To be continued next week.

_________________________________________________________________________________________

Legal Method . Book Cover 202x300 INFORMATION TECHNOLOGY LAWCulled from: Legal Method  | Author: Nnamdi Ebo  |  Published by LawLords Publications  |  ISBN: 978-978-49827-9-6  | 1st Edition 2012
Buy the book, Legal Method  |  Click  Bookshop
Nnamdi Ebo | [email protected]  |  © 2015 Nnamdi Ebo . All Rights Reserved

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