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Validity and Enforceability of Customary Law in Nigeria: Towards a Correct Delimitation of the Province of the Courts

Published online by Cambridge University Press:  15 January 2019

Amos O Enabulele  and
Bright Bazuaye
Amos O Enabulele*
Affiliation:
University of Benin
Bright Bazuaye*
Affiliation:
University of Benin
*
[email protected]
[email protected]
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Abstract

With a view to showing that courts do not have the power to validate native law and custom, this article highlights the different roles assigned to the assent of the people governed by native law and custom, and to the court called upon to determine its judicial enforceability. It argues that customary law is validated by the assent of the people and not by courts, and that the tests contained in different statutes by which courts are permitted to intervene in the regime of customary law are tests of enforceability and not tests of validity. As a result, it argues that the term “validity test” is misleading when used in relation to the power of courts to determine the enforceability of native law and custom, and should therefore be discarded.

Keywords

Native law and customjudicial noticerepugnancy testvalidation of customary lawNigerian Constitutionevidence
Type
Research Article
Information
Journal of African Law , Volume 63 , Issue 1 , February 2019 , pp. 79 - 104
Copyright
Copyright © SOAS, University of London 2019 

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Footnotes

*

LLB, LLM, PhD (Brunel University, London), BL. Barrister and solicitor; associate professor, Faculty of Law, University of Benin.

**

LLB, LLM, PhD (University of Benin, Nigeria), BL. Barrister and solicitor; associate professor, head of department (jurisprudence and international law), Faculty of Law, University of Benin.

References

1 See Kutner, L “Legal philosophers: Savigny: German lawgiver” (1972) 55/2 Marquette Law Review 280Google Scholar; Wacks, R Understanding Jurisprudence (4th ed, 2015, Oxford University Press)CrossRefGoogle Scholar, noting that Savigny believed that the law is located in the spirit of the people, the Volksgeist, and that, “like language, a society's law materializes spontaneously from its way of life”.

2 1962 WNLR 1 at 5.

3 (1990) 3 NWLR 182 at 207.

4 Ibid.

5 1 NLR 80 at 100–01.

6 (1973) 1 NLR 740 at 753.

7 2008) 161 LRCN 76 at 97.

8 (1963) WNLR 95 at 97.

9 Ojisua v Aiyebelehin (2001) 11 NWLR (pt 723) 44 at 52–53.

10 Lewis v Bankole, above at note 5 at 309. See also Karibi-Whyte JSC in Kindey and Others v Military Governor of Plateau State (1988) 2 NWLR (pt 77) 445.

11 Customary Courts Law, cap 32, Laws of Eastern Nigeria, 1963, now applicable in the states that succeeded to the region. Oba noted that sec 2 of the Customary Courts Law, cap 49, Revised Laws of Anambra State of Nigeria, 1979 is a reincarnation of this provision: Oba, AA “The administration of customary law in a post-colonial Nigerian state” (2006) 37 Cambrian Law Review 95 at 95Google Scholar.

12 SNC Obi Modern Family Law in Southern Nigeria (1966, Sweet & Maxwell) at 7.

13 Elias, TO The Nature of African Customary Law (1956, University Press) at 55Google Scholar.

14 Malemi, E The Nigerian Legal System: Text and Cases (3rd ed, 2012, Princeton Publishing Co) at 64Google Scholar. See also Emiola, A The Principles of African Customary Law (2005, Emiola Publishers Ltd) at 11Google Scholar, noting that “customary law … grows from the customs and conduct of the people and is based on the tested traditions of the particular society concerned”.

15 Kiye, ME “The repugnancy and incompatibility tests and customary law in anglophone Cameroon” (2015) 15/2 African Studies Quarterly 86 at 86Google Scholar.

16 Obilade, AO The Nigerian Legal System (1979, Spectrum law Publishers) at 83Google Scholar, noting that “ethnic customary law is unwritten”.

17 Bennett, TW and Vermeulen, T “Codification of customary law” (1980) 24/2 Journal of African Law 206 at 215CrossRefGoogle Scholar.

18 Angu v Attah (1916) PC at 43.

19 Giwa v Erinmilokun (1961) All NLR 294 at 379. Obilade The Nigerian Legal System, above at note 16 at 85, noting that “unless a custom is judicially noticed, the party contending that it exists has to prove it as a fact”. Malemi The Nigerian Legal System, above at note 14 at 95, noting that “a rule of customary law … has to be proved as a fact by calling evidence, at least at the first instance”.

20 (1934) 11 NLR (PC) at 18.

21 (1997) LRCN 1435; (1997) 5 NWLR (pt 505) 313 at 319. Also see Ogiugo and Ogiugo (1999) 73 LRCN 3681.

22 Unreported judgment of the Edo State Customary Court of Appeal, appeal no CC/2A/2003 of 26 November 2003.

23 Above at note 21 at 3684.

24 Id at 3685.

25 Park, AEW The Sources of Nigerian Law (1963, Sweet and Maxwell) at 90Google Scholar.

26 Obilade The Nigerian Legal System, above at note 16 at 90.

27 Aigbovo, O Introduction to the Nigerian Legal System (3rd ed, 2018, Sylva Publishers Ltd) at 71Google Scholar.

28 Id at 72.

29 (1947) 12 WACA 127.

30 Above at note 18.

31 Ababio II, above at note 29 at 128.

32 Park The Sources of Nigerian Law, above at note 25 at 90.

33 Ibid.

34 Ibid.

35 Obilade The Nigerian Legal System, above at note 16 at 90–91.

36 Ehigie v Ehigie 1 All NLR 842.

37 (1985) 3 NWLR (pt 13) 372.

38 Tapa v Kuka 18 NLR 5; Re the Estate of Aminatu AG v Tunkwase 18 NLR 88. These cases are authority for the view that no presumption of a change in an individual's personal law arises simply from long residence in a place.

39 (1961) 1 All NLR 842.

40 Park The Sources of Nigerian Law, above at note 25 at 83.

41 1955–56 WRNLR 133.

42 This view was criticized by Obilade The Nigerian Legal System, above at note 16 at 91, arguing that the case was wrongly decided. See also Park The Sources of Nigerian Law, above at note 25 at 91.

43 Unreported judgment of the Edo State Customary Court of Appeal in suit no CCA/1A/2004.

44 Id at 12–13.

45 (1989) 2 NWLR (pt 104) 373 at 428.

46 (1989) 1 NWLR (pt 99) 566 at 583.

47 Nwauche, ES “The constitutional challenge of the integration and interaction of customary and the received English common law in Nigeria and Ghana” (2010) 25 Tulane European & Civil Law Forum 37 at 43Google Scholar.

48 Olubodun v Lawal, above at note 7 at 98–99, holding that “[t]he requirement of proof means that the custom must be pleaded as facts in pleadings”.

49 (1909) Renner 550 at 551.

50 Allott, AN “The judicial ascertainment of customary law in British Africa” (1957) 20/3 The Modern Law Review 244 at 246CrossRefGoogle Scholar.

51 Nwauche “The constitutional challenge”, above at note 47.

52 Id at 44.

53 Taiwo, EA “Repugnancy clause and its impact on customary law: Comparing the South African and Nigerian positions: Some lessons for Nigeria” 34/1 Journal for Juridical Science (2009) 89 at 111Google Scholar.

54 Above at note 43.

55 Unreported judgment of the Edo State Customary Court of Appeal, appeal no CCA/8A/2004.

56 Id at 14.

57 1944 NAC (N&T) 4, cited in Taiwo “Repugnancy clause”, above at note 53 at 111.

58 Ibid.

59 Nwauche “The constitutional challenge”, above at note 47 at 48.

60 Obilade The Nigerian Legal System, above at note 16 at 84.

61 (2011) vol 192 LRCN 112.

62 Id, Onnoghen JSC at 137.

63 Id at 139.

64 Above at note 9.

65 Id at 52.

66 J Austin Lectures on Jurisprudence (4th ed, 1873) at 651; Austin, J The Province of Jurisprudence Determined Rumble, WE (ed) (1995, Cambridge University Press)CrossRefGoogle Scholar.

67 Hart, HLA The Concept of Law (2nd ed, 1994, Oxford University Press)Google Scholar.

68 Re Southern Rhodesia (1919) AC 21 at 233.

69 Hoebel, EA The Law of Primitive Man: A Study in Comparative Legal Dynamics (1954, Harvard University Press) at 28Google Scholar.

70 GR Woodman “Some realism about customary law: The west African experience” (1969) Wisconsin Law Review 128 at 146.

71 (1991) 8 NWLR (pt 209) 280 at 292.

72 AN Allott Essays in African Law (1960, Butterworth) at 89.

73 Park The Sources of Nigerian Law, above at note 25 at 68. See also Aigbovo Introduction to the Nigerian Legal System, above at note 27 at 52, stating that “the practise in question must not only be custom, but it must be law, in the sense that it must be obligatory”. Emiola The Principles of African Customary Law, above at note 14 at 7. K Eso Further Thoughts on Law and Jurisprudence (2003, Spectrum Books) at 359. Malemi The Nigerian Legal System, above at note 14 at 64.

74 Above at note 9 at 52–53.

75 Evidence Act, cap E14 Laws of the Federation of Nigeria, sec 18(3); High Court (Civil Procedure) Rules, order 32, rules 2 and 3.

76 High Court Law, cap 60 Laws of Lagos State, 1994, sec 26.

77 Cap E14 Laws of the Federation of Nigeria.

78 Cap 60 Laws of Lagos State, 1994.

79 See, for instance, sec 48(1) of the Kaduna State Customary Court of Appeal Law, 2001.

80 Malemi The Nigerian Legal System, above at note 14 at 77. Obilade The Nigerian Legal System, above at note 16 at 100. Park The Sources of Nigerian Law, above at note 25 at 68. Nwauche “The constitutional challenge”, above at note 47 at 46. Oba, AA “Religious and customary laws in Nigeria” (2011) 25 Emory International Law Review 881 at 894Google Scholar, stating that, “[w]ithin the Nigerian legal system, the colonially imposed validity tests applicable to Islamic and customary law should be repealed”. Nnona, CG “Woman to woman marriage and cognates in Nigerian Law: An easy coalition between customary law and human rights” (2016) 42/3 Commonwealth Law Bulletin 375 at 394–95CrossRefGoogle Scholar, arguing that “[t]he repugnancy doctrine is too blunt a tool for assessing customary law's validity given customary law's nuances”.

81 Taiwo “Repugnancy clause”, above at note 53 at 95.

82 Mojolagbe Ashongbon v Saidu Oduntan [1935] 12 NLR 7 at 10.

83 Above at note 68 at 233.

84 (1917) 7 EALR 14, cited in JO Ambani and O Ahaya “The wretched African traditionalists in Kenya: The challenges and prospects of customary law in the new constitutional era” (2015) 41 Strathmore Law Journal 41 at 54.

85 [2014] 9 NWLR (pt 1412) 393 at 425. The same sentiment was expressed by Ogunbiyi JSC at 421–22 and Ariwoola JSC at 426–27. The better approach was presented by Muhammed JSC, reasoning (at 15) that the custom “offends the rule of natural justice, equity and good conscience …[and] that the practice must fade out”. See also Nnona “Woman to woman marriage”, above at note 80 at 395, noting that the history of the application of the repugnancy doctrine “reveals a tendency for its users to peer at customary law suspiciously through jaundiced lenses evinced by the word ‘barbarous’ and its derivatives”.

86 Abiola, O “Judicial approach to customary law” (1969) 3 Journal of Islamic and Comparative Law 44 at 44Google Scholar.

87 Some authors, it may appear, understand validity to mean that a custom was not valid in the first place. See Eso Further Thoughts, above at note 73 at 77, stating that, “for a custom to be valid in Nigeria and therefore be enforced by the courts as customary law, it must satisfy three main tests”. Park The Sources of Nigerian Law, above at note 25 at 68, arguing that, “all rules of customary law are subject to certain general tests of validity before they can be enforced”. To argue that the validity test precedes a rule of customary law is to seek to put the cart before the horse. To all intents and purposes, a rule of custom precedes the tests. The tests are not part of the ingredients of customary law, but are extrinsic to customary law and serve the purpose of browbeating customary law to external standards. The preferred view is that of Obilade The Nigerian Legal System, above at note 16 at 100, observing that “an applicable rule of customary law is not to be enforced by courts unless it passes the tests”.

88 (1994) 9 NWLR 301 at 344–45.

89 Adaramola, F Basic Jurisprudence (2nd ed, 2003, Nayee Publishing Co) at 102–03Google Scholar.

90 Evidence Act, sec 18(2).

91 Dworkin, R Taking Rights Seriously (1977, Duckworth) at 40Google Scholar.

92 Fuller, LL The Law in Quest of Itself (1999, The Lawbook Exchange) at 134Google Scholar.

93 (1931) AC 262 at 673.

94 Harris, JW “When and why does the grundnorm change?” (1971) 29/1 The Cambridge Law Journal 103 at 118CrossRefGoogle Scholar.

95 Above at note 93 at 673.

96 Okonkwo v Okagbue (1994) 9 NWLR (pt 368) 301 at 345, holding that “[f]or custom to have the force of law, it must be approved by the consent of those who follow it”.

97 (1944) 11 EACA 34.

98 Id at 47.

99 Kiye “The repugnancy and incompatibility tests”, above at note 15 at 89.

100 [1991] 7 NWLR (pt 204) 391 at 417.

101 (1961) NRNLR 81. This case has been criticized on other grounds. See Obilade The Nigerian Legal System, above at note 16 at 103, noting that “a custom which is invalid for any purpose is invalid for all purposes”. Compare with Aigbovo Introduction to the Nigerian Legal System, above at note 27 at 59–60, noting that “it is generally agreed that this approach [of evaluating the result of the application of a rule of custom] is commendable”, but adding that the “repugnancy test is an absolute one. When it is applied to a particular rule, the rule must either be wholly rejected …”.

102 Mariyama, id at 83.

103 Ibid.

104 (1946) 18 NLR 70.

105 Park The Sources of Nigerian Law, above at note 25 at 73.

106 (1946) 6 Ny LR 6.

107 (1982) 3 NCLR 1.

108 Id at 21.

109 Adaramola Basic Jurisprudence, above at note 89.

110 (1992) 5 SCNJ 25. See also Olabanji v Omokewu (1992) 7 SCNJ 266 at 281.

111 Romaine, id at 44–45.

112 Above at note 18 at 44.

113 (2001) 11 NWLR (pt 724) 318 at 337.

114 Woodman, GR “How state courts create customary law in Ghana and Nigeria” in Morse, BW and Woodman, GR (eds) Indigenous Law and the State (1988, Foris Publications) 181Google Scholar, cited in Kiye “The repugnancy and incompatibility tests”, above note 15 at 96–97.

115 Ibid.

116 Above at note 5 at 100.

117 Id at 101.

118 Allott “The judicial ascertainment”, above at note 50 at 258.

119 Woodman “Some realism”, above at note 70 at 134.

120 (2014) 11 NWLR (pt 1418) 384.