Customary Law

Customary Law
The third principal. source of Nigerian law, is the customary Law. Customary law consist of customs accepted by members of a community m Customary law may be divided into two terms of their nature.
Ethnic or Non-Muslim Customary law:
This is indigenous to Nigeria. Each system of customary law applies to a particular ethnic group. The ethnic customary law are unwritten. The diversity of customary laws is a great obstacle to its uniformity.
Islamic Law
Islamic law is based on Muslim faith and apply to members of the faith. The Muslim laws are written and rigid. The main source of Muslim law is the HOLY KORAN.
Characteristics of Customary Law
1) One of the characteristics of a customary law is that it is accepted as an obligation by the community. It is “a mirror of accepted usage”.
2) It is flexible, i.e. it rules changes from time to time. They reflect the changes in the societal aspiration.
3) It is unwritten, i.e. not coded
4) It is not uniform, i.e. it changes from time to time.
Proof of Customary Law
There are two methods of establishing customary law before the courts namely
1) By proof
2) By Judicial Notice
By Proof
A customary law must be proved by a person alleging its existence. This is done by calling on native chiefs or other persons having special knowledge of customary law, may be called upon to express his opinions as evidence on a point of customary law. But the courts sometimes call Chiefs to give evidence. Section 58 of the Evidence Act stipulates that any book or manuscript recognised by the Native, as a Iegal authority is relevant in determining questions of customary law. The book must be authoritative document stating one or more customs accepted by the people as binding. For a party to succeed, he must not only prove the existence but must establish that the existing custom govern the situation.
Where there are two customs governing a situation and both are relied upon, the court will then decide which custom governs, the situation.
Judicial Notice
Certain facts are so obvious that they need not be proved before the court, e.g. that a human being has head or hands. Such obvious facts are said to be judicially noticed by Court
a) Judicial Notice in courts other than customary and Area courts
Judicial notice in courts other than customary and area courts is governed by section 14(2) Evidence Act that a custom may be judicially noticed if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it kl assuming that the person or class of person concerned in that area look upon the same as binding in relation to circumstances similar to those” under consideration.
b) Judicial Notice in the Customary Courts
Customary Courts are not allowed -to apply the rules of evidence or Common Law, therefore the doctrine of judicial notice does not apply in customary courts. However customary court which is versed in its area of jurisdiction is entitled to take judicial notice of the customary law. In other words, the. court is deemed to know the law and prove of it is not necessary.
Validity of Customary law
The rules of customary law are subject to the three tests of validity prescribed by statute.! Section 26(1) of the High Court Law of Lagos States provides that the “High Court shall observe and enforce the observance of every customary law which is applicable and is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by implication with any law for the time being in force. In addition section 14(2) of the evidence Act contains the repugnancy and Public Policy Test.
Repugnancy Test:
In LAO YE V. OYETUNDE, the court held that the repugnancy test was intended to abolish barbarous custom. Similarly, in ESUGBAYI V. OFFICER ADMINISTRATOR GOVERNMENT OF NIGERIA, the court held that a barbarous custom must be rejected on grounds of repugnancy to natural justice equity and good conscience. This does not mean that a custom which does not satisfy the English doctrine of equity and good conscience would be repugnant. Thus in the case of EDET V. ESSIEN, the appellant paid dowry in respect of a woman when she was a child. Later the respondent paid dowry in respect of the same won^ and. married her. The appellant now claimed the paternity of the children of the second marriage in accordance with the customary law. The court held that the customary law could not be applied because it is repugnant to natural justice equity and good conscience. Similarly in the case of MARIYAM V. SADIKU EJO, the validity of a custom where by any child born within 10 months of divorce was the property of the former husband of the child’s mother was called to question. The court held that the customary law will not be applied because it was repugnant to natural justice and good conscience.
Test of Incompatibility
Section 26 (1) of the High Court law of Lagos State provides that the High Court shall observe and enforce the observance of every customary law which is applicable and is not repugnant to natural justice Equity and good conscience, nor incompatible either directly or by implication with any law for the time being in force.
Thus where a particular customary law is incompatible with any law for the time being in force, the customary law will not be applied. Thus in the case of RE ADADEVOH. the court held that any law for the time being in force’* includes the English law in force. In that case the issue was whether a Muslim testator could by a will made in accordance with the Wills Act 1837 validity disposed of his property in a manner inconsistent with the Muslim law. The supreme Court held that the Muslim law is inapplicable because it is incompatible with the Wills Act of 1837.
Test of Public Policy
Section 14(3) of the Evidence Act provides that in case of any custom relied on in any judicial proceeding, it shall not be enforced if it18 contrary to public policy.
Thus where a custom is contrary to public policy the custom will not be applied. Thus in the case of ALAKE V. PRATT it was held that a custom which places children born out of wedlock on the same footing with those born within wedlock is contrary to public policy. Because such a custom will encourage promiscuity. However, the 1999 Nigerian constitution has sort of legitimised the birth of any child as legitimate whether born out of wedlock or not; provided the child is born in Nigeria, the child acquires, automatically, citizenship by birth, see section 25(1 )(a) of the 1999 constitution.

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