Customary law is among other laws the most controversial and as a result raises a lot of questions among legal luminaries. There are whole lots of reasons responsible for these and this research shall take time to address as many of these causes or reasons as possible. To add salt to injury, the few authorities of customary law that still hold sway customary sources (in explaining the inconsistencies of the law of custom) agrees that “all laws are custom but not all custom is the law” This job has been made easier thanks to Dr. B. O. Adediji (Reader) an erudite scholar of the law, who practically gave the entire outline of the course that this research must sail (table of content) To display my scholastic content I have laid it on myself to provide nine court decided cases relating to customary law in addition to the original task required of me by my amiable lecturer. In addition, this research shall also identify limitations of customary law and also proffer workable recommendations that are potent to assail the problems confronting customary law in Nigeria.
2. WHAT IS CUSTOMARY LAW IN NIGERIA?
Hon Justice Narebor (1993) gave a definition of customary law to be: ... a rule of conduct which is customarily recognized adhered to and applied by the inhabitants of a particular community in their relationship with one another within or outside the particular community and which has obtained the force of law, in that non-compliance with the rule or custom in question attracts adjudication and possible sanction. The definition above bears close resemblance to that given by Allen (1939) while analyzing the Gold Coast Colony Native Administration Ordinance 1927. Said he, Native customary law means a rule or a body of rules regulating rights and imposing correlative duties, being a rule or a body of rules which obtains and is fortified by established native usage and which is appropriate and applicable to any particular cause, action, suit, matter, disputes, and includes also any native customary law recorded as such … When the two definitions given above are seriously considered, it will be detected that customary law consists of customs accepted by people in a community as binding among themselves. Customary law according to Mukoro (2004) while speaking about the Evidence Act of Nigeria Section 2, sub-section 1 of 1990 said that customary law is the rule in a particular area that has attained the force of law due to prolong usage. Both Elias (1977) and Badaiki (1997) see customary law as a body of customs, accepted by members of a community as binding upon them. In summary therefore customary law possesses the following characteristics: 1. A mirror of accepted usage or culture of the people that observe it 2. Flexible (elastic), organic (not static), regulatory and a living law of the indigenous people subject to it 3. Largely unwritten – either wholly or partly unrecorded 4. Long and unvarying habits and in existence at the material time, not dead ashes or customs of by gone days. 5. Accepted as a custom of universal application and enjoying the assent of the community, etc. 2
3. TEST OF CUSTOMARY LAW
From the above characteristics, it is obvious that customary law is of a varying nature, the source of customary law is majorly from custom through human being. The anthropomorphic nature of this source therefore necessitates the fact that customary law vary across space and time. It is therefore important that every custom that shall parade itself as law must pass the following tests in which failure in one is failure in all… for the test that states that one also state all. (a) The Repugnancy Test: The repugnancy test of the evidence Act of the laws of Nigeria states that a court should not enforce as law a custom which is repugnant to natural justice, equity and good conscience. Therefore, no customary law should obstruct the rules of natural justice like the right to be heard, liberty and freedom...