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What Is Customary Laws ?

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Customary law is the ancient regulatory rules or norms which are generally accepted by the people subject to it as binding among them. It is a measure of acceptable way of life of the people from time immemorial Obiade in this book. The Nigerian legal system, at page 83 defines customary law as “consisting of customs accepted by members of a community as binding among them” and Bairamian F.J defines customary law in his dictum in Owiniyin V Omotosho (1961) ah NLR 804 AT p.309 as a “mirror of accepted usage. Hon. Justice Obaseki Jsc Rtd. defines customary Law in Oyewumi vs Onesan (1990) 3 NR (pt 1 3 7) 182 page 207 and also at page xiii. Supreme court years 1975 -1 991 published by Nigerian Law publications ltd 1991 “as an organic or living law of indigenous people of Nigeria, regulating their lives and transactions” Explaining his definition he said “it is organic in that it is not static. It is regulatory in that it Controls the lives and transactions 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 subject to it”.

There were Customary laws ¡n Bini community before the advent of colonial imperialism but were subjected to what is called repugnance tests introduced by the colonial masters. This means that the laws were filtered to conform with what is obtained in the civilized world particularly in England and to conform with the realities of modern times. Like the customary laws of other tribes in Nigeria, what is left of Bini customary law are those that have passed through the cruxible of legal purification. Slavery, witch craft killing of twin babies , forced marriages are some of the customs the modern legal system does not accommodate The Bini custom which makes childless Iloi, or wives of the Oba to take refuge at Ugbegun unmarried till they died is no longer part of Bini custom.

Reference Bini law and custom by J. U. Egharevba, pp 99-100. The Bini customary law like most customary laws have has remained principally ‘because it reflects the values of communities traditional African type and it is an admirable instrument for regulating activities and relations within such communities. Like what is today known as the common law of England which is regarded as the BEST law then, it is a collection of the unwritten customs of the people of English different communities that were brought together, filtered by means of parliamentary debate as well and subjected to, different tests before it became known as the common law of England instead of different ethnic laws. It became a law common to all .communities instead of their ethnic Community laws.

Even Cannon or Roman Laws have infiltrated the customary laws of the English people as was English laws to our own laws Some schools of thought have argued that the application of the repugnance test to our Native laws was a form of cultural imperialism. I have a different view. There is no race or people without a custom and where there is custom, there must be regulatory laws. Norms which are barbaric in every society are discarded with and in doing so; a form of repugnancy test is being applied.  It is inferiority complex as black race dehumanized during the slave trade and scramble for Africa by the whites that made people to think that the white colonialist wanted to impose their laws and custom on them. Another form of slavery it seem to be but it not infract those customs that have been discarded with through the repugnancy test are customs which today will still have battled the present civilized generations of Africans as there has been agitation for abolition of some archaic customs. Our ancient fathers introduced the archaic Primitive beliefs which today baffle subsequent generations Of Africans. Example is the use of humans for sacrifice and the killing of twins. There is no native custom all over world that has not been refined. The received statute of general application which were operation in England as at 1st January, I900 and which were automatically received into our own legal system have had no considerable effect on the Bini customary law. This is so because considerable effect on the Bini customary law. This is so because S 45 ( 2) of the interpretation of statute law says that such imperial laws shall be in force do far only as the limit local jurisdiction and local circumstance shall permit and subject to any federal laws” In other words, the received laws, that is the imported laws can only be acceptable vis-à-vis our own local laws or customary laws so far they do not conflict with or inconsistent with our own customary or federal laws of Nigeria. A good example is the Bini customary laws with bars a father from disinheriting his surviving eldest male child from inheriting his “IGIOGBE” or his ancestral house thought a will made by him even though he married under the statutory law or under the matrimonial. Act which is the English law whatever will that is made under the statutory law it must not be inconsistent with the Bini customary law of succession and inheritance- see Okungbowa vs Okungbowa suit No B493787 Idehen vs Idehen  which  must not conflict with customary law,  eldest son Cannot be deprived of lgiogbe. Only a male child succeeds and ascends the throne of his father in Benin no matter the circumstances of his birth. In Asomwonriri H C Benin case unreported, a child born out of wedlock was to be deprived by his half brothers from ascending to his father’s throne, the Enogie of Obagie of Benin. He was accordingly installed as the legitimate heir to the throne. S. 42(2) of the 1999 constitution generally is believed to remove any disability. Akande said in his book introduction to the constitution of Nigeria 1 p79, p39 that the original draft of the committee (on draft constitution) specifically stated that no citizen of Nigeria shall be the subject of discrimination merely on the ground that he was born out of wedlock. See the case of Salubi Vs Nwaraku (19)7) NVLR PT 505, 442 at 454 to 455R. ¡5, Where the court held that a child born outside wed- lock is not an illegitimate child and has right to share n his father’s properties after the father had died intestate. However, if this section 42 (2) of the constitution intends to protect all citizens in Nigeria, male or female, the question of a female child being discriminated against by reason of her being born a female sex, in inheriting properties in Benin custom has to be closely examined as this customary law negates or conflicts with that section of the constitution which forbids discrimination by reason of birth. sex, etc, “Citizen” in S 42 (2) does not differentiate between male and female, it has been argued that this section concerns children born out of wedlock and to give them legitimacy  I do not agree with this.

There seem to be exceptions to the rule of interpretation of this section of the constitution as it favors the Bini customary law which exclusively makes the senior males surviving son to inherit the IGIOGBE. Discrimination, by reason of circumstances of birth, embraces all laws that are against rights of the senior male/female child and that right included the right to inherit the IG1OGBE. This ought to be the literal interpretation of S. 42 (2) of the 1999 constitution. . . . .

Proof of customary laws is strictly by oral evidence as customary laws which are ancient laws are not documented in writing. It must be proved by person skilled in, that custom and by person who alleges the existence of that custom,, See Umweni vs. Umveni & others suit No.B/ 1 1 /89 ‘Law in traditional Southern Nigeria ‘was unwritten, its principles were sometimes expressed in proverbs; it might even be said to be latent in the breasts of the community elite or of the court remembrances; and given expression only when expression was called for but it was no less vital than the written codes of continental Europe as a vital instrument for regulating society” (The judicial system in southern Nigeria l854- 1954). Ref. p80 milestones at 70, 2nd annual Obafemi Awolowo lecture delivered on 5/3/88 on “The place of the courts, the rule of the law’ and fundamental Human rights in the living culture of Nigeria” by Hon. Justice Obaseki JSC Rtd. Where one of the judges is skilled in the custom of that area. Judge’s opinion can be relied on.
In the case of Lydia Adepoju  Issac Adeneti (1961) WNCR ¡54, the high court of justice holding at Ibadan held that….

It was very important. that a customary marriage should be properly proved when it becomes an issue in a case and that the best proof must come from the person who witnessed the marriage ceremony or took part in it or from the parents of the woman to whom dowry vas paid or who gave the woman away in marriage” This is imparimaterial with Benin customary law which are judicially noticed relied on by the higher court. Books, local authority maybe accepted in evidence but may not be cited, certain facts are very that they need no proof before court. It is judicially noticed that only the senior surviving son of the Oba ascends the Benin throne. “A customary law is a question of fact, to be proved in each case. A registered declaration of the fact will obviate the necessity of proof of each case. It is not an exercise of legislative powers” Per Karibi Whyte JSC in “ABETOBA vs. LSEC (4991)4 LRCN”.

In a court of appeal Benin decision in chief Aigbe Igiehon & OR.S plaintiff/Appellant for themselves and on behalf of Ukhiri village...VS
Chief Fredrick Ekhator Omoregie Ors Defendant/Respondents Appeal No. CA/B/188/89 and upheld by the Supreme court in its ruling on 6/7199, the Court of Appeal said “in the case of proof of Title to land by means of traditional evidence, where the traditional evidence is not contradicted or in conflict and found by the court to be cogent, it can support a claim for a declaration of title... where there is a conflict of traditional history the way is to test the traditional history by reference to the fact in recent years as. Established by evidence and seeing which, of the two competing histories is more probable.. The question of how and when the ancestors of each party came to the land in dispute and what and what they have been doing there becomes relevant. Two persons or parties adversely claiming against each other cannot be in possession of the land at the same time” .

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