Customary law is rooted in the history, tradition and culture of the people. It is the organic or living law of indigenous people of Nigeria regulating their lives and transactions. 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. Customary law in Nigeria include nature law and custom administered in the southern part of Nigeria as well as Islamic law administered in the Northern parts of Nigeria, which is predominantly Muslim community. In a community, custom as law play important roles in directing and regulating the mode of life of the natives. This is why customary arbitration has been and remains an effective tool in alternative dispute resolution in communities and indeed the modern society. But recently, customary law has been constantly inconsistent, thus making it inadequate to handle law and order in our societies. In this paper the inadequacy of customary law in coping with law and order would be discussed, showing clearly the factors that makes it inadequate. DEFINTION OF TERMS
Abiola Sanni in ‘introduction to Nigeria legal method’ defined customary law as the customs accepted by members of a community as binding among them. In Owoniyi v Omotosho (1961) All NLR 304, Baramian FJ, described customary law as ‘a mirror of accepted usage among a given people’. Obaseki JSC in Oyewunmi v Oguesan (1990) 3 NWLR pt. 137 defines customary law as ‘the organic or living law of the indigenous people of Nigeria regulating the lives and transactions’. Section 2(1) of the evidence Act defines it as ‘a rule which in a particular district, which has from long usage obtained the force of law’ Customary law generally emerges from the traditional usage and practice of a people in a given community, which, by common adoption and consent on their part, and by long and unvarying habit, has acquired to some extent, element of compulsion, and force of law, with reference to the community. And because of element of compulsion, which it has acquired over time by constant consistent community usage, it attracts sanction of different kinds and is enforceable. Putting it in a more simplistic form, the custom, rules, traditions, ethics, and culture which govern the relationships of members of a community are generally agreed as customary law of people. In explaining customary law, it is important to point out what customary law is not. Customary law is not common law; so also customary law is not statue law. In Ohai v Akpoemonye the Supreme Court stated that ‘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 between parties subject to its sway’ Law and order
Law and order is a state of society where vast majority of population respects the rule of law, and where the law enforcement agencies observe laws the limit their powers. When there is law and order in a country, the laws are generally accepted and obeyed, so that society functions normally. ESTABLISHMENT OF CUSTOMARY LAW
Customary law can be established before the court either by proof i.e. the party alleging its existence has to prove its existence by evidence in accordance with the provision of the evidence act section 14 (1) and (2). This proves may require the party to present an individual who have lived in that particular community for a very long time. Another way of establishing customary law is by judicial notice. Courts take judicial notice of customs that are common or if the custom has been acted upon by a superior or co-ordinate court, in the same area to an extent which justifies the court and it is binding in relation to circumstances similar to those under consideration see S 14 (2) evidence act. APPLICATION OF CUSTOMARY COURT
Even when customary law is established, it must be enforceable by the courts. In other words, for a...