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Customary Law

Last Update (July 9, 2020)

There is need to define Customary Law and appreciate it importance or relevance particularly in the African context in order to follow closely the subject of this writing. What then is Customary Law? To the layman generally, customary law is simply the traditional unwritten law of the people, handed down from generation to generation. It can also be referred to as “Native Law and Custom”. Customary Law being legal terminology, the Judges and the Lawyers are better placed to explain its full meaning and able to throw more light on it than laymen. In my search, I found HON. JUSTICE ANDREWS OTUTU QBASEKI’S definition most authoritative and this,. BARRISTER P.O ISIBOR of the Customary Court, Benin City (now Judge of the Customary Court of Appeal), referred to as “Locus Classicus”

In this epic decision of the Supreme Court of Nigeria, in case of OYEWUNMI V. OGUNESAN (1990) 3 NWLR art 137) 182 at 184, HON. JUSTICE ANDREWS OTUTU OBASEKI, J.S,C. as he then was, (a president of Grade ‘A ‘customary Court in Benin City in the old Western Region of Nigeria before joining the higher bench) defined  Customary laws was:.

“The organic or living laws of the indigenous people of Nigeria, regulating their lives and transactions. It is regulatory in that it controls the lives and transaction of the community subject to it”

Went further:
He 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 entire subject to it

Furthermore , Akintunde Emiola, Barrister-at-law and professor of Law, Edo State Universally, ED. S.U, (Now A.A.U) Ekpoma, in his Book Principles of African Customary law’’ identified six special features of customary law when he wrote  on page 7 as follows;
“There are broadly six peculiar features of customary Law; first it is unwritten, just as the English Common Law is unwritten. Second it is derived from and based on the customs and usages of a particular people. Third Customary Law is of local application and, in spite of it common features throughout Africa it varies in details from society to society. Fourth it is flexible. Fifth it is a popular law and commands allegiance from the majority of the people subjected to it. Sixth, Customary law is a moral Law founded on the principles of the universal rules of Justice and fair play”

Thus, customary or traditional marriage is contracted in accordance with customary law and practice. It has a set Patten and procedure to be followed, and there are certain ingredients that must be present to validate such a marriage and their absence ipso facto invalidates it. It is also a social contract irrespective of the issuance or non-issuance of a formal certificate, between the suitors or partners as the primary beneficiaries and also recognized as a contract between their two families as the tradition of the people of Benin provides. This is similar to what obtains in most other ‘culture in Nigeria or Africa (South of the Sahara), for that matter that marriage of a woman is not only just marriage to her husband but to the husband’s extended family which is a cherished principle in African society.

Customary Courts arid Appeal courts
Jurisdiction to adjudicate on matters relating to customary laws in Nigeria including customary marriage. In Edo State of Nigeria under focus, and in the Benin Areas covering OREDO, EGOR, IKPOBA-OKHA., ORHIONMWON, UHLJNMWODE, OVIA . NORTH.EAST, AND OVIA SOUTH-WEST Local Government Areas., there are District Customary Courts presided over by Laymen and Area Customary courts comprising lawyers (as president) and experienced laymen or women as members. There is also the Customary Court of Appeal, which is at the Apex, composed of’ justices of the court who are legally qualified and highly experienced and erudite lawyers.

It is emphasized that since customary law is largely unwritten, its adjudication in the courts ensures that customary law must not be repugnant to natural justice, equity or good conscience or incompatible directly or indirectly with any written law in force or with the country’s constitution. By this very nature therefore, the courts are obliged to depend, inter alia, on two major pillars namely, (a) preponderance of evidence and (b) precedents, or settled cases for guidance and proper adjudication. As confirmed by Customary Court functionaries and Legal Practitioners in reply to my questionnaires, the cases that may infringe upon or arise out of traditional or customary marriage are legion. They may include breach of promise to marry, cancellation of marriage, engagement, or betrothal, proof of marriage, separation, divorce or nullity of marriage, elopement, custody of children, right of inheritance, lack of consent and others. In view of this it is not just a casual affair to contact marriage under Customary  Law and practice but every step requires to be followed diligently to ensure VALIDITY.

Codification of Customary Law
On the issue of codification of Customary Law BARRISTERP.P.O ISIBOR now JUDGE of the Customary Court of Appeal wrote in answer to the writer’s Questionnaires as follow;

“There has been some clamour for the codification or, at least, some documentation in appropriate form of our major system of customary law in this country".

A possible codification of Bini Customary Law is therefore desirable M.C.OKANY in his book “The Role of Customary Court in Nigeria” Listed some of the advantages of codification at Pages. 238 and239 as follows;

(¡) Both the Napoleonic code and the common law of England were the unified custom of the peoples of France, England and Wales respectively. If the people of France, England and Wales accepted unification of their various customs, there is no reason why the people of Nigeria should not .

(¡¡) Customary Laws being unwritten depends for their survival and preservation on human memory Human memory is often unreliable, and when. This unreliability is added to the deliberate distortions of the law by interested litigants and other disputants the result is uncertainty. Codification remedies this situation and gives certainty to our laws.

(¡¡¡) There is also the fact that elder who are the repositories of customary Laws are fast dying out. Their descendants spend a good .deal of their lives in our urban areas. These descendants know very little of these laws and remember less with any degree of accuracy. As a result, whenever the need arises to state and implement a rule of customary law, only a garbled version, if any at all is recollected, someone makes up a version. These results in so-called changes in the law, but social change do not emanate from, social change or from evolution of ideas. Codification will stop this process.

(iv) For the reasons stated in (iii) above, our true customary laws are in danger of being lost forever Here again. Codification will provide an answer.

(v) Unless customary laws are set down in writing, it will be very difficult, perhaps impossible, to reform their bad aspects”

However, there are some arguments against codification again, M.C. OKANY at Pages. 239& 240 set some, of the argument down as follows:

Once customary laws are codified, they cease to be customary laws and become e formal statues..
Codification leads inevitably lo stratification of customary laws. In other words, they become frozen in the statute books and cease to grow.
The majority of our rural populations are illiterate. It would therefore not be worth the time, money and effort needed to effect codification if the people for whose benefit and guidance the codes are to be compiled cannot read them.
If customary laws are codified, they will be laid wide open to distortion by the courts trying to interpret them
CONCLUSION: in concluding. Hon. Justice Isibor Wrote “it would appear that in the special case of Bini native laws and custom, the advantages of codification out-weigh the disadvantages”.

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