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Before the inception of the British colonies which brought common law in place as a source of Nigeria law. It remain an indisputable fact that there was in existence a body of norms & tradition which regulate the various kinds of relationship between the members of a community in their traditions which is regard to us, custom for the purpose of ascertaining justice due to certain factor, the court has made a proviso by putting forward various test otherwise called validity test to a custom in order to become a law. The doctrine of repugnancy is the test of validity because due to the medieval period and evolution of English equity. The doctrine of repugnancy prescribe that the court shall not enforce any customary law if it contrary to public policy or repugnant to natural justice, equity & conscience. The doctrine was introduced into Nigeria by the end of the 19th century via the received English Laws to test our customary law for acceptability. Nigeria customary law has always been in an evolving state, it was never static. It could have continued to evolve and attain higher levels of refinement without the dislocating intervention of the repugnancy doctrine. As a matter of fact, the repugnancy doctrine which was introduced by the colonial masters as stated via above to divest customary law of its barbarous aspects is simply a tool a colonial subjugation of the Nigerian people. Nigerian ethnic nationalities always had notion of justice and fairness inherent in the divergent social systems before colonialism.
TABLE OF CONTENTS
Table of Contents
Table of Cases
Table of Statutes
Table of Abbreviation
CHAPTER ONE: INTRODUCTION
1.1 Back ground of the study
1.2 Statement of the Research Problem
1.3 Aims and Objectives of the Study
1.4 Research Questions
1.5 Significances of the Study
1.6 Nature & Scope of the Study
1.7 Research Methodology
1.8 Literature Review
CHAPTER TWO: NATURE AND PRINCIPLE OF CUSTOMARY LAW
2.1 Historical Evolution and Theories of Customary law
2.2 Meaning of Custom & Customary Law
2.3 Characteristics customary law
2.4 Customary Law as a Source of Nigerian Law
2.5 Sources of Nigerian Customary Law & Practices
2.6 Conflict of Laws
2.7 Proof of Custom
2.8 Proof of Customary Law Before Courts
2.9 Ascertainment Of Customary Law
2.10 Validity Test of Customary law
CHAPTER THREE: CHALLENGES, PROSPECTS & SOLUTION OF CUSTOMARY LAW IN MODERN LEGAL SYSTEM
3.1 Challenges in the Application of Customary Law
3.3 Constitutional Recognition
3.4 International Agreement
3.5 Constitutional Proviso
3.6 Repugnancy proviso
3.7 Conflict between Different system of Customary Law
3.8 Choice of Laws
3.9 Custom, Justice And Equity
CHAPTER FOUR: SUMMARY, CONCLUSION AND RECOMMENDATION
1.1 Background of the Study
The idea of “customary law” that is under consideration concerns the laws, practices and customs of indigenous peoples and local communities. It is not, for instance, the same idea as ‘customary law’ in the international context. ‘Customary international law’ has a more precise and technical meaning in the realm of rules governing relations between distinct States, referring to those aspects of international law that are based on custom or practice between States. The Charter of the United Nations annexes the Statute of the Permanent Court of International Justice, which requires it, when deciding disputes in accordance with international law, to apply (among other things) “international custom, as evidence of a general practice accepted.” Some experts have suggested that there are or should be linkages or overlap between customary international law and the customary law of indigenous peoples and local communities, but in general these two distinct areas of law and practice should not be confused with one another. Customary law is a set of customs, practices and beliefs that are accepted as obligatory rules of conduct by indigenous peoples and local communities. Customary law forms an intrinsic part of their social and economic systems and way of life.
Customary law is, by definition, intrinsic to the life and custom of indigenous peoples and local communities. What has the status of “custom” and what amounts to “customary law” as such will depend very much on how indigenous peoples and local communities themselves perceive these questions, and on how they function as indigenous peoples and local communities. According to one definition, “custom” is a “rule of conduct, obligatory on those within its scope, established by long usage. Are valid custom must be of immemorial antiquity, certain and reasonable, obligatory, not repugnant to Statute Law, though it may derogate from the common law. General customs are those of the whole country, as, e.g. the general custom of merchants. Particular customs are the usage of particular traits. Local customs are customs of certain parts of the country.”
In law is the pattern of behavior that can be objectively verified within a particular social setting. A claim is carried out in defense of “what has always been done and accepted by law”. Most customary laws deal with standards of community that have been long established in a given locale. However, the term can also apply to areas of international law where certain standards have been nearly universal in their acceptance as correct bases of action, and laws against prey or slavery. In many though not all instances, customary laws will have supportive court rulings and case laws that has evolved over time to give additional weight to their rule as law and also to demonstrate the transitory of evolution (if any) in the interpretation of such law by relevant courts. Count Fredrick Karl Von Savigny (1779-1861) introduced a new dimension in the legal arena through his concept of Volkgeist or common conscience of the people which according to him is the peculiar seat of law. According to him the true “living law” is customary law because it does not emerge from the arbitrary will of a law giver, but from internal, silently operating forces within the community. Nigeria like many other African nations is a heterogeneous society with multiplicity of ethnic groups. This means, multiplicity of customary law. Hence, contrary to the teachings of Von Savigny, one cannot readily speak of a national Volkgeist of the various socio-cultural grouping of the Nigerian state.
For centuries, ethnic customary law regulated various affairs and transactions of natives particularly in areas of personal laws relating to marriage, succession and property rights. Information concerning the substance of customary law passed from one generation to another through oral traditions. Customary law becomes endangered because those that are learned in principles of customary law are aging and dying. As time passes by, we continue to lose touch with the nature of our customary law. With regards to the fact that customary law is largely unwritten (legis non scripta), People who are expertise in customary law come to court to give biased versions of customary law principles. Judges sometimes rely on these versions of the law to arrive at judgment, which many a times do not reflect the true nature of customary law.
During the colonial rule in Nigeria, British colonialists introduced the repugnancy test, public policy test and incompatibility test to the application of customary law. These tests have been sustained in various Nigerian laws after independence in 1960. With the present constitutional democracy in Nigeria, there is an introduction of the fourth test, which is the constitutional test. The Nigerian legal system is one we are all familiar with, the Nigeria legal system is broad and diverse. Its diverse calls for special studies, it had notices that the religious and ethnic diversifications of Nigeria are major factors responsible for the broadness of its laws and the fact that Nigeria is made up of three main regions. The legal system of Nigeria is designed to bring focus and consideration all these regions to form a unifying kind of law in which everyone will feel represented. Aside the tribes/ethnic diversity in each of these regions, there is also the religious diversity. The Nigerian legal system makes effort to bring all these aspects into consideration too. These form the basis of what is termed the customary law in Nigeria. Generally, the English common law forms part of the foundation on which the Nigerian legal system is built.
A facial description shows an institutional (court) structure of dualism, at least at more state levels and pluralism of laws in the country consisting of the received English law (common law and the statute of general application in force as 1st January, 1900), the pre-existing or indigenous customary law regimes, largely in the southern part and Islamic law largely in the northern part of the country. Institutionally, the dualism mentioned is reflected in the structure of the courts consisting of the regime of subordinate courts like the magistracy or with other appropriate nomenclature given and the superior court of records, high court and its coordinates, the court of appeal and at the apex, the supreme court of Nigeria. The dualism is reflected in the institutional framework with the customary not like courts to apply and administer customary law. It is importance to show that all the courts without exception are empowered, directly or indirectly, in the 1999 constitution (as amended) and their various enabling laws to administer customary law. For instance by Section 13(1) High court law, Cap 50, law of Osun State 2000 the high court shall observe and enforce the observe and enforce the observance of every customary law which is applicable and is net repugnant to natural justice, equity and good conscience. By section 15 of the customary court, law CAP-37, law of Osun state, 2000. “Subject to the provision of this law, a customary court shall administer.
(a) the appropriate customary law specified in section 16 in so far as it is not repugnant to natural justice equity and good conscience nor incompatible either direct or by necessary implication with any written law for the time being in force”.
At the appellant level, some states have taken advantage of the constitutional provisions to establish customary court of appeal an there are various constitutional imperatives concerning customary law especially in relation to the superior court.
1.2 Statement of Problem
The basic reason for this paper is to highlight the potentials for customary law to contribute to both legal and social justice in a way that eliminates the bottlenecks that have bogged down the current legal and judicial system which Nigeria has borrowed from Britain as a result of her colonial history and relation with the then British empire. The apparent complications inherent in this received legal system lies in the fact that Nigeria is a highly heterogeneous society with well above a hindered ethnic groups each with their own cultures, languages and customary laws. Given this scenario and with a high level of illiteracy among the general population, an attempt to foist the received English legal system on the nation has been problematic. The English legal system, particularly the official judiciary, is viewed by a great majority of the people as an elitist institution. Because of the many problems of the English legal system such as prolonged delay in adjudication of disputes, high cost of litigation, corruption and the bitterness and rancor that follow court judgments, a large chunk of the population feel alienated from this foreign and in most cases, strange legal system. They would rather resort to their more familiar customary laws to settle disputes and determine regular issues such as marriage and inheritance rights. Since these customary laws belong to the people, they are more able to understand the system and to accept a settlement or determination that emanates from it. This way, legal justice coincides with social justice and society is put on a surer path of progress. This paper among other is therefore intended to make a case for the blending of customary law with the received English law in such a way that the people do not only have the opportunity of legal justice but can obtain social justice as well leading overall to a progressive social development in the country.
Today, the application of customary law by courts in pluralist jurisdiction presents at least two issues. One involves the question on how to establish a particular customary law. This is mainly because (unlike state law, which tends to be uniform, relatively stable and is issued formally and publicized) customary law in Nigeria and many other African countries jurisdiction is diverse and remain largely unwritten, informal and often difficult to ascertain. Many countries have adopted different methods of ascertainment. For instance, if a customary law is invoked in civil proceedings, it may be proved through judicial notice by virtue of section 12 which provides thus,
A custom may be judicially noticed when it has been adjudicated upon once by a Supreme court of records.
Therefore, when the invoked customary law cannot be judicially noticed, the person invoking the custom“has the burden of proving it as fact.” In proof of a custom as a fact, it is provided for under the Evidence Act, from the foregoing, customs are proved based on whether the court believe it or not and also the ideal of a prudent in relation to the circumstances of the case thereby putting the fate of a person on what the court think and not what the law say it is and the thinking of a reasonable man.” It therefore reduces the values of customary law, which should be proved based on law and not fact.
The custom in question may also be established through expert opinions; in this regard the opinion of traditional rulers, chiefs or other persons having special knowledge of the custom in question is admissible. It is also proved through books/manuscripts and persons likely to know of its existence. However, the question now is what the fate of the society in determining the sincerity of the elderly persons who has been called upon to testify or based on the knowledge and idea of some scholar. The rationale behind the above question lies on the fact that human minds are not transparent to be seen and known when one is actually telling the truth and when he is composing in order to testify otherwise because “the devil himself knoweth not the intention of man”.
Another issue involves the question of whether a customary law is suitable for application. Nigerian law states that, in any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy, or is not in accordance with natural justice, equity, and good consciousness. Therefore, once the customary law in question is ascertained, it has to undergo a repugnancy test before it can be applied. The meaning of this test remains unclear today, as the Nigerian Supreme court admitted in a 1995 case. As a result, its application has also remained inconsistent and subjective as illustrated by a number of the court’s decisions. In 1976, the court declared woman-to-woman marriage repugnant. In 1989, the court held that, an Onitsha rite providing that the head of a deceased husband’s family (Okpalla) has the right to alienate the property of the deceased while his widow is still alive is a “barbarous and uncivilized custom which should be regarded as repugnant to natural justice, equity and good conscience and therefore unacceptable”. In 1994, the court also held that, marriage to a dead person was repugnant. The application of the doctrine has therefore watered down the influence, fear, and impact of custom towards the society alongside their belief.
Judicial notice which is determined based on whether the higher court have adjudicated upon it, emphasis now lies on what would be the fate of the common man and the society as well, in the circumstance where a particular custom is appearing as a matter before the court of first instance. Does this mean that such customs would not be established concerning judicial notice? This however proves that, our customary law should be given its full place in the legal system in order for it to be concurrent with other sources of Nigerian law for, since customary law is a constituent part of the present legal system, there is the need to involve the legal process in establishing customary law with certainty.
The law of inheritance and succession doctrine under English law is reasonably settled but, the aspect dealing with customary law is not which breeds conflict amongst heirs, what more the law discriminates among beneficiaries. Consequently, the customary law falls under the repugnancy provost against discrimination. Unfortunately, Nigerian courts have long demonstrated in the case of Nwanya V. Nwanya,and in the case of Mojekwu V. Mojekwu,however has made a turning point, the Nigerian court of Appeal in that case struck it down as repugnant to natural justice, equity and good conscience, the Oci-ekpe custom in Igbo land which bar women from inheriting land. Discrimination does exist in the method of distribution under various customary laws. On fair practice, allows some of inheritance while others cannot.
In customary law, the law of succession, basically deals with testate methods of inheritance and the rule governing them differ, we discriminate aspects of property inheritance under customary law, it manifests in different forms and scope ranging from primogeniture rules, right of spouses, right of adopted children and rights of illegitimate children, although it is generally agreed under customary law of intestate succession and inheritance in Nigeria, that succession goes to blood.
1.3 Aims and Objective of Study
The aims and objectives as to question in controversy which revolves around customary law has been so ambiguous, the pressing issues as to the purpose of this work include:
(1) Assertion in terms admissibility and applicability of customary.
(2) To achieve appropriate methods in which customary law can be recognized alongside applied in various aspects of law.
(3) To achieve and alongside scale the negativity and positivity in the application of the validity test.
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