Thursday, 16 March 2017
Customary law is a custom which is accepted as binding by a people. Customary law is the body of custom which from long use have acquired the force of law among a people. Custom is a way of life. It is the way of life of a people. Customary law is a custom that has the force of law. Section 258(1) of the Evidence Act, 2011, defines custom as:
“A rule which in a particular district has from long usage obtained the force of law”.
Customary law, is the indigenous law of the various peoples or ethnic groups of Nigeria before the advent of foreign laws into Nigeria, in the form of religions law, English law, statue law and so forth. Customary law is the indigenous laws of the various peoples of Nigeria and Africa as opposed to English law, statute law and so forth.
Customary law consists of ethnic customary laws and Islamic law. Thus when we refer to customary law, it includes both ethnic custom which are unwritten and Islamic law which is in written form. The issue with customary law is, it is a question of fact and liable to be proved by the person alleging the existence of that custom. Section 18 of the Evidence Act and Ajikanle V. Yusuf (2008)2 N.W.L.R (PT. 1071) 301 .
In Ajikanle V. Yusuf (supra) at Pp. 326-327, paras F-A (ratio 14), the court of Appeal, Ibadan Division held that:
‘By the combined effect of S.14 S.13 of the Evidence Act, therefore, a given custom is a question of fact and where material to a party’s case same must necessarily be pleaded and proved. Where, however, the very custom have been acted upon be superior court in the area from which the claim evolved or the custom had acquire such notoriety and judicial notice of the custom is taken, the court thereby dispenses with its proof. A plaintiff in that instance still pleads the very fact of the custom and those facts on the basis of which he ruled, at trial, pray the court to dispense with proof and instead take judicial notice of the very custom which entitles him to the reliefs seeks from the court. The mere ipse dixit of the person who alleges a custom would not suffice even through no particular number of witnesses or the fact that it had applied more than once by a superior court is required for its proof. See Ozogula V Ekpenga (1962)1 ALL NLE 265, (1962)1 SCNLR 423 and Olubunmi Cole & ANOR V. Akinleye & Ors 1961 All NLR 294 at 296 (1960) SCNLR 192”.
In another, instance, the practice of primogeniture among the Bini people has become notorious, in view of the supreme court decision in Ogiamien V. Ogiamien (1967)5 N.S.C.C. 189. Therefore, a party claiming the existence of custom need not call witnesses to establish that such custom exists. The courts can also take judicial notice of the existence of that custom under section 122 of the Evidence Act, a custom may be judicially notice upon a single decision by a superior court. The requirement of a number of decisions as envisaged under section 14(2) of the repealed Evidence Act is no longer the law.
In the Supreme Court case of Oyewunmi V. Ogunejan (1990)21 N.S.C.C. (pt. 11) 240 at p. 257, customary law was defined by Obaseki JSC, in the following winds.
“Customary law is the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that, it is not static. It is regulating, in that it controls the lives and transaction 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 import justice to the lives of those subject to it”.
The same supreme court in the case of Zaidan v. Mohssen (1973)8 N.S.C.C. 516 at p. 525, had this to say about customary law:
“We are of the view that in this context, customary law is any system of law not being the common law, and not being a law enacted by any competent legislature in Nigeria, but which is enforceable and binding within Nigeria as between the parties subject to its sway”.
For a custom to be accepted as valid and obligating in any community in Nigeria it must pass validity test. The validity test is a legal requirement that a custom must not be repugnant.
Public policy nor
Incompatible with any law for the time being in force.
In the case of Rivers State, section 18(1) of the High Court law of Rivers State, 2001 provides that:
“The court shall observe and enforce the Observance of every local custom and shall not deprive any person of the benefit thereof except when any such custom is repugnant to natural justice, equity or good conscience or incompatible, either directly or by necessary implication with any law for the time being in force”.
From the above position, for a peace of custom to be applicable, it must pass the repugnancy and incompatibility test. See Ojiogu V. Ojiogu (2010)8 NWLR (Pt. 1198)1 and section 18(3) of the Evidence Act.
These legal requirements are the validity text a custom must satisfy to be enforced as customary law. When a custom satisfies the above legal requirements a validity tests, a court of law will enforce it as a customary law among the members of the community to which it applies.
Finally, a customary law is usually flexible and is either unwritten or party written. However, a custom must exist at the time a party is claiming it, otherwise a court of law will not apply it customary law is often applied by a court as a judicial precedent. Similarly as stated earlier a court may take judicial notice of a customary law.
LEGISLATION AND STATUTE
A legislation or statute is a law enacted by the legislature and it is usually in a written form or code. Legislations or statute are the main source of law making. Also law reforms by amendment, expansion, repeal and so forth.
The National Assembly of Nigeria has power to make laws for peace, order and good government of Nigeria (section 4(2) and (7) of the 1999 constitution on amended. Be legislation or statutes are usually in written form and are therefore called written laws, as opposed to common law or customary law which are not strictly in codified from. Where laws are enacted in the legislature such as the National Assembly or a State House of Assembly, which are made up of the elected representative of the people, the law has to be passed according to the prescribed legislative procedure. (First, second and third readings and debate. Some of the laws require two third votes of the total members of the legislature to become law, whilst others require only a simple majority of votes. The National Assembly in Nigeria is made up of two houses, the Senate and the and the House of Representative this is Upper and Lower house respectively.
In the state, there is a single House of Assembly. After a bill as a law is first called has been passed, it has to be sent to the president or the state governor who assents to it by subscribing that is appending his signature to it and it becomes law. Where assent is withheld, the legislature may on its own by the required majority of votes pass the bill into law. See sections 58(5) 59(4) 100(5) of the 1999 Constitution as amended. The National Assembly and states Houses of Assembly can enact statutes within the ambit of the legislative list assigned to them by the constitution.
ACTS AND LAWS
Statutes enacted by the Natural Assembly are called Acts of parliament whilst statutes passed by a state House of Assembly are called laws. Various Acts and Laws have been passed to regulate different aspect of life in Nigeria. Law making and reform is a continuous exercise. Law reform society and society reform law. It is a continuous exercise.
DECREES AND EDICTS
When a military government is in power, a statute passed by the Federal Military Government of Nigeria through the ruling military council is called a Decree, whilst a law enacted by the Military Government of a State is called Edict.
However, a government may be law convert and deem specified decrees and edicts to be Acts a law and from the date of such legislation making the conversion, the affected decree or edict may be properly called and referred to as Act a law. (The forth schedule of the 1999 constitution as amended similarly decrees and edicts which are not repealed by the constitution are automatically converted to Act, and laws when civil rule is installed.
Legislation passed by a local government council are known as bye-laws or by-laws. Many local government councils in Nigeria have various bye-laws, with aspect to matters over which they have power to make law under the constitution such as collection of rates, establishment and maintenance of cemeteries, Motor Parks, Naming of Roads, registration of birth, death and marriages, shops sale of liquor and so forth as listed under the functions of a local government council in the 1999 constitution as amended. (Fourth Schedule of the 1999 Constitution).
Delegated legislation is legislation be some administrative person, authority, body or agency, under a power given by the constitution or an enabling statute permitting such administrative authority to make laws makers include
Chief Justice of Nigeria and Chief Judge of the State
Public (corporation, agencies, statutory bodies and so forth).
Acting under appropriate enabling statutes which empower them to make such delegated legislation.
These delegated law making are known as delegated, subsidiary or subordinate legislation. Delegated or subsidiary or subordinated legislation is usually controlled by parliament in that the proposed rules and regulation are printed and laid before parliament which may then debate them and approve them for enforcement, amend or otherwise reject it as the case may be.
These regulations when made in the stipulated manner are just as much law as the parent statute itself. They are an indirect form of legislation and may take to form of
Statutory instruments such as regulation rules, orders and directives.
Orders in council
Rules of court and so forth
CASE LAW: THE DOCTRINE OF PRECEDENT
The idea of precedent derives basically from the universal habit of mind to follow past examples. Case law is law formed from the legal principles of a case. Case law is law formed from earlier decided cases. It is law based on judicial precedent, that is the practice of following precedents or law laid downing earlier cases. Case law is law based on the principle of STARE DECISIS, which means, the practice of standing be, following or applying earlier decisions provided that the case a hand is similar to the earlier case or cases sought to be followed. Thus case law is law, according to successive like decided earlier case. The doctrine of stare decisis is the principle of English law that precedents are authoritative, binding and must be followed unless there is a reason to deviate. The doctrine of stare decisis is the requirement that court should stand by or apply an earlier correct decision. Accordingly, where there is no existing law on a matter, a judge in such an instance can go ahead and give a decision, such decision then becomes a precedent or case law which may be followed in subsequent similar cases, especially if the precedent correctly states and represents the law on such given matter. In both civil and criminal cases judges usually state the reason for their decision when giving a ruling or judgment. In future when a case involving similar facts comes before them the judges will refer to the reasons for the decision in the earlier case if the principle of law to be applied in the present case is the same, the judge will then follow the earlier decision that is the legal principles established in the earlier case. This practice of following the legal principles a law laid down in earlier cases that are similar to the case at hand causes law to be more certain and uniform in application. The law so laid down in earlier decided cases is called case law or judicial precedent as opposed to statue law which is usually codified at the instance of the relevant law marker or customary law which usually grows overtime from custom of the people subject to the customary law.
AUTHORITY OF CASE LAW
When the hierarchy of courts in Nigeria, every court is absolutely bound by the decisions of court above it. The bindingness of a decision, case or precedent is according to the hierarchy of the court that decided it. Likewise, the position in other countries, the judgment of the higher courts in Nigeria such as the supreme court at Abuja and the court of Appeal which has several division sitting in various party of the country have always commanded the greatest respect. The general rule in the Nigeria legal system which is derived from England is that the decision of the higher courts in Nigeria binds the lower courts. This the decisions of the supreme court which is the highest court in Nigeria binds all courts in the country, excepts to Supreme Court overrules the case or declares such case as a case decided.
Per incuriam (in ignorance) or a case decided based on its peculiar circumstances and which is not to be followed in other cases except where reliance is unavoidable such as, where a similar situation re-occurs.
Abiola Sanni ( ). The legal Method.
Eze Malami (2006). The Nigeria Legal System.
Eze Malami (2004). The Nigeria Legal Method
The Constitutional of the Federal Republic of Nigeria (1999) (Amended)