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.

 

Introduction to Customary Law

Nnamdi Ebo 2 241x300 INFORMATION TECHNOLOGY LAWLawyer Zone  | By Nnamdi Ebo

Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of “what has always been done and accepted by law.” Customary law exists where:

  1. a certain legal practice is observed and
  2. the relevant actors consider it to be law (opinio juris, ie. “an opinion of law”)

Related is the idea of prescription; a right enjoyed through long custom rather than positive law. Customary law is a recognized source of law in Nigeria; but it is inferior to both statutes and regulations. In addressing custom as a source of law within the civil law tradition; bearing in mind, the superiority of the received English law, national legislation, ordinances and regulations, I posit that, though the attention it is given in scholarly works is great, its importance is “slight and decreasing.” Suffice it to say that it is recognized and accepted as part of the Laws of the Federation of Nigeria. 

In the early times, the geographical area now known as Nigeria comprised different settlements. Among these settlements were some 250 ethnic groups and more than 500 dialects of languages. Each ethnic grouping had its own language or languages, cultures, traditions and customs. Despite ethno-linguistic differences, the various settlements, communities, villages and hamlets were not isolated from one another. These indigenous peoples had their own peculiar forms of political, economic, social and cultural relations. Many of these settlements etc were linked to one another by rivers, creeks, or land mass or a combination of two or all of them. These links provided routes which facilitated and promoted exploration, discovery, trade and commerce. They enhanced mobility of labor, migration, and other social relations and interaction. There were also inter-tribal wars and internecine feuds and conflicts which tended to divide them at times. They plotted and betrayed each other for various advantages in the areas of trade and land ownership.

The settlements in due course, either by conquest or by other growth processes, metamorphosed into kingdoms, empires and principalities, which by accident of history and by numerous geographical handicaps or fortunes attained varying levels and degrfees of political, social, cultural and economic development. Certain physical features influenced the occupational distribution of the early settlers, as well as their type of ancestral worship. Northwards were savanna areas; the inhabitants were chiefly pastoral; they worshipped the god of the sky. Southwards were the forest belts; for the settlers who were mainly farmers, the object of their worship was the god of land. Still further southwards are the coastland areas; the settlers were mainly fishermen and they worshipped the goddess of the sea (i.e. ‘mammy water’ – mermaid etc.). These people lived amongst themselves and some sort of organization sprung up.

 It is truism that there has to be a scheme of rules or laws and compulsion to enforce obedience if the group or society must survive and continue to exist. Each of the ethnic- linguistic groups therefore had its own concept of law, judicial process and customary laws without which human society could not exist. These laws played a prominent role in the regulation of the affairs of members of the group.

Customary laws are –

  1. Practices, which by common adoption and long usage have come to have the force of

    law

  1. Rules, which have obtained the force of law from long usage
  1. A body of customs and tradition accepted by members of the community as binding

    on them

  1. Organic or living laws of the indigenous people which regulate their lives and

     transactions

  1. Unrecorded traditional norms and history of the people, which has grown with the

    growth of the people to stability and eventually becoming an intrinsic part of their

    custom and tradition.

  1. Usages or practices which by common adoption, acquiescence and by long and

    unvarying habits, have become compulsory and have acquired the force of law with  

    respect to place, or the subject matter to which it relates.

Characteristics of Customary Law

  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

  1. Largely unwritten – either wholly or partly unrecorded
  2. Long and unvarying habits and in existence at the material time, not dead ashes or

    customs of by gone days

  1. Accepted as a custom of universal application and enjoying the assent of the

    Community etc.

A review of Nigerian customary law: as mentioned above, Nigerian 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 a part of a social and economic system that they are treated as if they were laws. Customary law constitutes those laws that are indigenous to the native communities in Nigeria. Another parallel type of law is Islamic law (Shariah law). Islamic law has its origin in Nigeria – based on the military conquest conducted by Moslem Jihadists led by the pious religious and military strategist – Usman Dan Fodio (ie the Fulani conquest) who conquered major parts of Northern Nigeria circa 18th–19th century AD; including Western Borno and Northern Yorubaland. 

The Fulani established the Fulani Emirates under the rule of Emirs. Thereafter, he and his lieutenants established Islamic religion based on the holy book – Koran. Though the Shariah law was eventually accepted by the people, some communities still retained their indigenous native/customary laws. Customary law is also a custom which has been accepted as binding by the people. It is an unwritten body of customs which are indigenous to the people and which have acquired the force of law among the people from long usage (based on longevity). 

Customary law as a matter of convention is regarded as fact that has to be proved to the utmost satisfaction of the court before application. Customary law assumes legitimacy within a community based on the peoples’ acquiescence to its efficacy. However, this legitimacy is valid only when a court of law is satisfied that it has met certain qualified conditions. For a custom to be accepted as valid, obligatory and applicable in any community in Nigeria, it must undergo a validity test – a legal requirement. That is to say that for a rule of customary law to be valid in the eyes of the law, it must meet with the following conditions:

Validity test: Customary law must not be repugnant to –

    1. Natural justice
    2. Equity
    3. Good conscience
    4. Public policy
    5. Incompatible with any law for the time being in force

Find below, the five validity tests:

1. Natural justice: in accordance with natural expectations of those qualities inherent in nature that is just or fair to the reasonable man. It is justice as defined in a moral, as opposed to a legal, sense – also termed justice naturalis. It has an affinity with natural law.

2. Equity: fairness; impartiality; evenhandedness. It is the body of principles constituting what is fair, just and right. Equity also connotes conformity with rules or standards. The standard quality of being just or fair.

3. Good conscience: the moral sense of right or wrong, especially a moral sense applied to one’s own judgment and actions. Good conscience also means conformity to one’s sense or comprehension of the right conduct. It has a tinge of morality to it – it has a concern with the distinction between good and evil.

4. Public policy: a vague term – it is flexible and it means what is good for (or will not harm) the general public. Public policy is a principle of law holding that no person can do that which has a tendency to harm the general public.

5. Incompatible with any law for the time being in force: it must be valid and enforceable. It must be able to exist in pari passu with the relevant and applicable laws. Finally, it must be harmonious or agreeable with any law that is applicable presently in Nigeria.

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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