1. Introduction
Customs
and traditions have, and will always be indispensable sources of Law in
Nigeria. When they are proved to be in
existence and/or govern certain transactions and circumstances, they are
appropriately termed customary law. One fundamental feature of customary laws
in Nigeria is that they are given potency and legal efficacy by judicial
pronouncements. Though customs and
traditions can, and indeed do exist to regulate the affairs of the persons
ordinarily subject to them, in the event of any dispute regarding their
legality or efficacy, it is to the courts that all concerned turn for
appropriate remedies.
In determining such matters, the
courts are themselves regulated by a number of criteria and enabling
conditions. This paper is aimed at
appraising the extent to which the judiciary (body of courts) in Nigeria has
lived up to this noble responsibility. This is so because, by the said role as
assigned to the courts, customs and traditions, (a-k-a, customary law) should
be constantly refined by judicial pronouncements and decisions. By the end of this paper, it will be clear
whether or not the Nigerian Judiciary has been able to truly refine customary
laws in Nigeria in order to bring them to internationally acceptable standard
of civilization.
2. The
Basis of Customs and Traditions as Law
To
understand why customs and traditions can be justifiably termed law, it is
necessary to explain what they mean or imply.
Custom[1] has been
described as “the established or common usage of a particular people.”[2] Statutorily, the Evidence Act[3]
defines custom as “a rule which in a particular district has, from long usage,
obtained the force of law”. Guided by
this statutory imprimatur, the Court of Appeal in Aku v. Aneku,[4]
in apparent obedience to an earlier decision of the Supreme Court in Agbai v. Okagbue,[5]
defined custom or usage as “the unrecorded tradition and history of the people which
has ‘grown’ with the growth of the people to stability and eventually become an
intrinsic part of their culture. It is a
usage or practice of the people which by common adoption and acquiescence and
by long and unvarying habit has become compulsory and has acquired the force of
law with respect to the place or the subject matter to which it relates.”
From these definitions, it is
obvious that custom can metamorphose to customary law; they are not necessarily
the same. Custom may not be customary law
but only refers to “the established usages of a people”.[6] This brings us to the apt observation of the
Court of Appeal in Ojisua v. Aiyebelehin,[7]
per Niki Tobi JCA (as he then was) thus:-
The
word ‘custom’ may only reflect the common usage and practice of the people in a
particular matter without necessarily carrying with it the force of law. In
other words, a custom may exist without the element of coercion or
sanction. John Austin had this in mind
when he defined ‘custom’ as positive morality, as long as it does not receive
judicial pronouncement. The element of
law is important because it is that which in reality carries sanction in the
event of breach”.
It
is against the background of the need to always make a difference between
custom and customary law[8]
that the various statutes by which courts apply customary law have laid down
some rules on criteria for the recognition, application and due enforcement of
customary law in Nigeria. They are the
legal basis for saying that certain customs or traditions are laws: albeit
customary laws.
The two main statutes on the matter
are the various High Court Laws[9]
and the Evidence Act. Section 18, High
Court Law of Anambra State, like similar provisions in other High Court Laws,
prescribes that the courts should observe and enforce the observance of native
law and custom in so far as the particular rule is not repugnant to natural
justice, equity and good conscience nor incompatible either directly or by
implication with any law for the time being in force.
In a similar vein, the proviso to s.
14(3), Evidence Act[10]
is to the effect that in any case of any custom relied upon in any judicial
proceedings, it shall not be enforced as law if it is contrary to public policy
and is not in accordance with natural justice, equity and good conscience.
Ogbu, O. N. was therefore correct when he distilled out the following three
guiding criteria for the recognition, application and enforcement of any rule
of customary law. They are:-
a)
The custom should not
be repugnant to natural justice, equity and good conscience.
b)
It should not be
incompatible either directly or by implication with any law for the time being
in force.
c)
The custom should not
be contrary to public policy.[11]
In
discussing the attitude of the courts to customary law therefore, these
validating criteria constitute the fulcrum for an objective assessment. In other words, decisions of courts are
gauged against the background of the legitimizing criteria. We shall subsequently, in this work, look at
various customary practices so far litigated upon and analyze the consequential
decisions as well as their impacts on the much needed refinement of the
customary rules as intended.
3. Customary Marriages, Paternity and
Custody of Children of Failed Customary Law Marriages
Some
statutes confer on certain courts original jurisdictions to determine
matrimonial causes bordering on customary marriages, paternity, as well as
custody of children. A typical example
of such jurisdiction – vesting statutes is the Magistrate’s Court Law of Enugu
State.[12] The Law, by its sections 17(1) (h); 18 and 19
(2) deliberately confers on the Magistrate’s Courts the power to determine
matrimonial causes arising from customary marriages and in relation to custody
of children. A party can therefore bring
an action for an order of a Magistrate’s court for the custody of children, at
times on ground of disputed paternity.
Order for custody of children can also be as a consequence of an order
for dissolution of customary marriage. It is an order made as incidental to the order
for dissolution of a customary marriage.
Action
for custody of children can also be instituted independent of a suit for
dissolution of customary marriages. For
instance, a marriage may have been dissolved by the act of the parties. If they fail to mutually agree on the custody
of the children of the marriage, a separate action can lie to that effect. It can also be that the issue in dispute is
the paternity of a child or children.
Two men may be in dispute over who the rightful father of a child or
children is and who should be entitled to the custody of the child or
children. In such cases, courts, whether
Customary Courts or other courts vested with the jurisdiction (original or
appellate) to enforce customary rules, usually place high premium on the
evidence of the woman, the natural mother of the child. This could be more so if the woman is not
validly married to any of the men contesting for the paternity and custody of
the child or children. In Ayegba v. Ayegba,[13]
the court relied on the evidence of such a woman because she was viewed as the
best witness or judge in the matter of her pregnancy.
Some
learned writers[14] have
however rightly observed that “the belief that a woman is in the best position
to know who impregnated her cannot be stressed too much (sic) in the case of a
promiscuous woman.” It can also be
apposite to base the issue of paternity and custody on the validity or
otherwise of the alleged marriage between the mother of the child in question
and the man claiming paternity. The
essence of such line of reasoning could be to play down on natural paternity in
order to discourage promiscuity on the part of married women. The decision in Iyorsu Igboke v. Chiram Ghaha[15]
is illustrative. There, the plaintiff
petitioned for the custody of a child under customary law. He contended that the defendant/respondent
had lived with him for two years before she became pregnant and thus, he, being
the father of the child, was entitled to his custody. In support of his claim, the plaintiff
tendered the child’s surname. The trial
court found for the plaintiff and held that the child resembled the plaintiff
and awarded the custody of the child to the plaintiff.
The
defendant/respondent appealed against the judgment which appeal succeeded on
the ground that it amounted to misdirection for the trial court to reach the
conclusion that the child resembled the plaintiff without being guided by the
evidence before it, that is, whether the defendant was validly married by the
plaintiff. In the same vein, Geoffrey Ashi v. Upere Agbenede[16]
apparently followed Iyorsu Igboke’s case
and reasoned that such decisions would impress on men wishing to marry to
endeavour to fulfil marriage obligations.
Generally,
the attitude of courts on custody matters is to view the welfare of the
affected child as paramount. Every order
in that respect must be weighed against the ultimate welfare of the child. This is in line with the provisions of the
Matrimonial Causes Act.[17] Most decided cases on the matter have
consistently followed this statutory requirement, especially the cases decided
strictly on the platform of Matrimonial Causes Act. Such cases include, Williams v. Williams[18]
and Nzelu v. Nzelu.[19]
As
regards custody of children arising from customary law marriages, subject to
rules of customary law however, there is a growing trend not to follow the
notion of the pre-eminence of the welfare of the child where he is a product of
customary law marriage. In such cases,
parental right is given a more prominent consideration over and above the
interest of the child. This is usually
more so in some parts of Nigeria where the culture is highly
paternalistic. The decision of an Otukpo
Grade 1 Area Court in Ede Ode v. Opinta
Ogale[20] adopted
this approach in holding that a child whose paternity is not customarily
legitimate is bound to remain with the mother until he grows up. What this implies is that whether or not the
child would have a better welfare with his mother, he is suffered to remain in
her custody.
Incidentally,
the courts are not in agreement on this point as Alabi v. Ajayi[21]
contrasts with Ede Ode’s case above. In Alabi v. Ajayi, the Customary Court of
Appeal, Plateau State, held inter alia, that
the interest and welfare of the child takes precedence over any law or custom
that might confer custody of the child on anybody. Consequently, that even if the law gives
custody to the father or mother or guardian and the court finds out that the
person in custody is not capable of taking care of the child, the court has
every right to give custody of the child to the person who can properly and
adequately take care of him or her. This
decision is obviously preferable, especially as it came from a superior court vis-a-vis the Upper Area Court that
decided the pro-paternalistic case of Ede Ode (supra).
Another
judicial decision of great significance, especially as regards customary law
marriages, is the case of Edet v. Essien.[22] There, the plaintiff had paid dowry for a
woman whom he married. The woman
subsequently entered another marital union with another man. The union produced two children. The plaintiff whose dowry had not been paid
back contended that under a rule of customary law applicable to the case, he
was entitled to the custody and paternity of the children. It was held that such a rule is repugnant to
natural justice, equity and good conscience.
The
basis for the decision in Edet v. Essien
is that paternity should belong to the biological father of a child, which
point is more consistent with the natural order of things, hence natural
justice. In fact, in the case, it was
also established that the second husband (defendant/respondent) had also paid
dowry on the same woman and apparently fulfilled all other marital obligations
expected of him on the woman. The only
grouse of the plaintiff (appellant) was the non-refund of his earlier dowry on
the woman, such that for as long as the dowry remained unreturned, the woman
would remain stuck to him and all her children, though not fathered by the
plaintiff/appellant, would be produced for him, just because of his unreturned
dowry. Obviously, the effect of such a
rule of customary law can be quite unjust and unnatural, hence its rejection by
both the lower and appellate courts in the case. Similar rules of customary law on marriages
and custody/paternity of children have been held as unenforceable for being
repugnant to natural justice, equity and good conscience in the following
cases:
a) Okonkwo
v. Okagbue[23]
The
rule of customary law in issue was a practice whereby a sister whose brother
had died without issues, and even unmarried could, in the bid to continue the
lineage of the said brother, marry a wife on behalf of the deceased who would
be bearing children in the name of the deceased so as to, inter alia, partake in the larger family property.
This
customary practice alleged to be prevalent in Onitsha, Anambra State, was what
the plaintiff/appellant had contended should not be enforced for being
repugnant to natural justice, equity and good conscience. Both the trial High Court and the Court of
Appeal, did not see reason to grant the plaintiff’s/appellant’s reliefs but the
Supreme Court overruled them and held that marriage as it is commonly known, is
a union of a man and a woman. That is to
say, between two living persons.
Therefore, for a marriage to be meaningful, it is necessary for the
husband to physically exist so that the marriage can be consummated. A custom that allows a woman to be married to
a deceased man cannot be said to be in good conscience or in accord with public
policy.
The
Supreme Court, per Ogundare JSC, summed up the matter in the following words:
To
claim further that the children the 3rd Defendant had by other man
or men are children of Okonkwo (deceased) is nothing but an encouragement of
promiscuity. It cannot be contested that
Okonkwo (deceased) could not be the natural father of those children. Yet 1st and 2nd
defendants would want to integrate them into his family. A custom that permits of such a situation
gives licence to immorality and cannot be said to be in consonance with public
policy and good conscience. It is in the
interest of 3rd defendant’s children to let them know who their true
fathers are (were) and not allow them to live for the rest of their lives under
the myth that they are children of a man who had died many decades before they
were born.
This
decision of the Supreme Court was most refined in the context it was made. Its effect on marriages and social relations
in Onitsha and other places which had condoned the said customary practice is
quite positive as it, like a religious doctrine, refined the conscience and
morality of those who had indulged in such morally reprehensible way of
life. It was a salutary judgment by the
Supreme Court indeed!
(b) Muojekwu
v. Ejikeme[24]
The
question here was on Nrachi customary
practice of the people of Nnewi in Anambra State. South – East Nigeria. The practice was (is) to the effect that a
father could plant his unmarried daughter in his house for the purpose of
raising issues for him. Invariably, the
same customary practice of Nrachi also prohibits a widow from succeeding to her
husband’s estate, especially where a daughter is already planted to be
procreating for her father so as to continue the father’s lineage
uninterrupted.
The Court of Appeal (of Nigeria),
Enugu Division, found this customary practice to be repugnant to natural
justice, equity and good conscience. It
considered the practice reprehensible, unacceptable and therefore unenforceable
and as such should not be part of the organic customary law of Nigeria. To appreciate the extent of the court’s
rejection of the custom in question, it is apposite to quote Fabiyi JCA (as he
then was) who read the leading judgment in the case. He had held inter alia, thus:
I
must express the point here, by which I will continue to state that human
nature, in its most exuberant prime and infinite telepathy cannot support the
idea that a woman can take the place of a man and be procreating for the father
via a mundane custom. She stays in the
father’s house and cannot marry for the rest of her life even if she sees an
honest man who loves her. I cannot, and
do not, believe that the society, as it is presently constituted, will for long
acquiesce in a conclusion so indecorous, ridiculous, unrealistic and merciless
more especially as we march on into the next millennium. The polity as presently constituted, cannot,
in my view, contain what Nrachi custom stands for. It is not neat. It is an antithesis to that which is
wholesome and forward. The custom is
perfidious, and the petrifying colour smell to high heavens ... I have no hesitation in declaring that Narchi
custom is against the dictates of justice, equity and good conscience.
(c) Eugene Meribe v. Joshua Egwu[25]
In
continuation of the ever growing trend by the Nigerian Judiciary to refine and
spare the body of Nigeria Customary Law of all that is obnoxious, mundane, perfidious
and petrifying, the Supreme Court, in this case, held inter alia as follows. That
in all cases where there was proof that a custom permitted marriage of a woman
to another woman, such custom must be regarded as repugnant to natural justice,
equity and good conscience. On the other
hand, a custom that permitted or approved that a barren woman could procure
another wife for her husband was approved and declared enforceable by the
court.
(d) Okwueze
v. Okwueze[26]
In
this case, the Supreme Court recognized and enforced the practice under most
systems of customary law in Nigeria whereby a father of a legitimate child or
legitimated child has absolute right to the custody of the child. It was also held therein that customary law
recognizes that the absolute right of the father will not be enforced where it
will be detrimental to the welfare of the child.
This ratio followed from another of
the ratios in the case, to wit, that in the case of dissolution of marriage
under Yoruba Customary Law, the customary law will consider who can best take
care of the child in custody cases. If
the court is convinced that the father can best provide for the child,
especially when the mother has no independent means of her own, the child will
be put in his custody notwithstanding the fact that he was the guilty
party. Continuing, the Supreme Court
also held that in making award of custody of a child in dissolution proceedings
under Yoruba Customary Law, the sex of the child is to be taken into
consideration. A female child is
considered to be more comfortable with the mother, and judicial notice could be
taken of this notorious Yoruba Custom while a male child is considered to fit
in with the father.
On the other hand, the court may
refuse to grant custody to either of the parents under Yoruba Customary Law, if
the court is convinced that none of them is capable of giving the child the
best care. In such a case, the court may
decide to grant custody to a guardian, in most cases, a relative.
This case was an opportunity for the
Supreme Court to approve and authenticate the customary rule which views the
welfare of the child as the fulcrum and the ultimate determinant of whose
custody should a child of a dissolved customary marriage be. What is the welfare of such a child, as well
as who is capable of providing it, are all matters of evidence ascertainable by
the trial court. Thus the Supreme Court,
per Uwais (JSC)[27] in this
case, elucidated on the point as follows:-
It
is obvious that the failure of the Customary Court to take all the aforesaid
into consideration in granting custody to the respondent had led to a
miscarriage of justice. The High Court
was right in adverting to the provisions of section 22 (1) of the Customary
Law. Cap 33, but it based its decision on custody of children under Statutory
Marriage by following a number of English decisions. This is obviously a misdirection. The only proper manner in which the custody of
a child under customary law can be determined is by specifically taking evidence
to establish which is in the best interest and welfare of the child...
This
decision and the rule of customary law on which it is predicated are
incidentally in tandem with the prevailing statutory enactment on the
matter. The Child Rights Act[28]
provides that in every action concerning a child, whether undertaken by an
individual, public or private body, institutions or service, court of law or
administrative or legislative authority, the best interest of the child shall
be the primary consideration.[29] The welfare of the child is and should be the
bottom line of every decision or action in relation to him/her.
The decision in Okwueze v. Okwueze above by the Supreme Court is therefore a clear
rejection and overruling of the pro-paternalistic judgment of Otukpo Area Court
in Ede Ode v. Opinta Ogale[30]
and such other similar decisions which tended to give a more prominent consideration
to parental right over and above the interest of the child. The Supreme Court’s decision has therefore
laid to rest, the hitherto raging controversy as to whether parental interest
or welfare of the child should be the deciding criterion for the custody of a
child, especially of a dissolved marriage.
Now it is certain and also plausible that what matters most in such
cases, both under the statutes and under customary law is the welfare of the
child.
4. Inheritance
and Ownership of Land
Other
major areas the Nigerian Judiciary has, by court decisions, shown clear
illumination and refinedness are in relation to inheritances and ownership of
land. The courts have, under the
auspices of the statutorily enshrined repugnancy test, subjected a number of
customary practices on inheritance and land ownership to strict scrutiny. Those found incompatible with natural
justice, equity and good conscience or inconsistent with the constitution and
other statutes have been struck down and declared unenforceable. They include
as follows:
a) Mojekwu
v. Mojekwu[31]
In
this case, the Court of Appeal, Enugu Division, subjected the perennial Igbo
custom (under which only men and not woman can inherit their father’s property)
to constitutional test. The custom
failed the test and the court held it to be contrary to democratic values,
unconstitutional and unenforceable. The
specific practice in question was the Oli-ekpe (inheritance) custom of Nnewi in
Anambra State which prohibits widows or daughters of deceased persons from
inheriting their spouses’ or father’s estates.
In declaring such a custom invalid and unenforceable, the Court of
Appeal, through Niki Tobi JCA (as he then was) held inter alia, thus:
All
human beings – male and female-are born freely, without an inhibition on
grounds of sex; and that is constitutional.
Any form of societal discrimination on ground of sex, apart from being
unconstitutional, is antithetic to a civil society built on the tenets of democracy,
which we have freely chosen as a people.
We need not travel all the way to Beijin to know that some of our
customs, including the Nnewi “Oli-kpe” custom relied upon by the appellant are
not consistent with our civilized world in which we all live today, including
the appellant. In my humble view, it is
the monopoly of God to determine the sex of a baby, not the parents. Although the scientific world disagrees with
the divine truth, I believe that God, the creator of human beings, is also the
final authority of who should be made male or female. Accordingly, for a customary law to
discriminate against a particular sex is, to say the least, an affront to the
Almighty God himself. Let no body do
such a thing. On my part; I have no
difficulty in holding that “Oli-Ekpe” custom of Nnewi is repugnant to natural
justice, equity and good conscience.
On further appeal to the Supreme
Court, this time, as Mojekwu v.
Iwuchukwu,[32] one of the parties having died and
therefore substituted, the court frowned at the sweeping language by which the
Lower Court purported to have pronounced the Nnewi custom of Oli-ekpe as repugnant to natural
justice, equity and good conscience.
According to the Supreme Court,[33]
it did not, given the circumstances of the case, see any justification for the
Court of Appeal to pronounce that “Oli-ekpe”
custom of Nnewi failed the repugnancy test.
This was more so because the parties to the case did not join issues on
the question of whether or not the said custom was repugnant to natural
justice, equity and good conscience.
Again, both the trial court and the Court of Appeal found that what
applied to the case was not “Oli-ekpe” custom
per se, but the “kola tenancy” custom
of Onitsha, the “lex situs” of the
property in issue.
The Supreme Court consequently had
to place the Court of Appeal’s pronouncement on “Oli-ekpe” custom of Nnewi in its deserved and proper perspectives
in the following terms:
....
The Learned Justice of Appeal was no doubt concerned about the perceived
discrimination directed against women by the said Nnewi “Oli-ekpe” custom and that is quite understandable. But the language used made the pronouncement
so general and far-reaching that it seems to cavil at, and is capable of
causing strong feelings against all customs which fail to recognize a role for
women. For instance, the custom and
tradition of some communities which do not permit women to be natural rulers or
family heads. The import is that those
communities stand to be condemned without a hearing for such fundamental custom
and tradition they practice and the system by which they run their native
communities. It would appear, for these
reasons, that the underlying crusade in that pronouncement went too far to stir
up a real hornet’s nest even if it had been made upon an issue joined by the
parties, or properly raised and argued.
I find myself unable to allow that pronouncement to stand in the
circumstances, and accordingly, I disapprove of it as unwarranted.[34]
The implication remains that Oli-ekpe custom is yet to be decisively
voided. But the most reasonable
expectation is that any time it becomes necessary to decide a case predicated
on it, the Court of Appeal’s pronouncement on it would most likely be activated
and applied to void it.
b) Nzekwe
v.Nzekwu[35]
There,
the Supreme Court applauded, sanctioned and validated the notorious custom of
Onitsha in Anambra State to the effect that a married woman, on the death of
her husband without a male issue, with the concurrence of her husband’s family
may deal with the husband’s property.
She has a right to occupy the building or part of if, but subject to
good behaviour.[36]
On the other hand, and in the same
case and context, the court condemned and voided an Onitsha custom which
postulates that an Okpala[37]
has the right to alienate the property of a deceased person in the life time of
his widow. The court described the
custom as barbarous and uncivilized, which should be regarded as repugnant to
equity, good conscience and therefore unacceptable.
c) Adejumo
v. Ayantegbe[38]
The
issue here is the customary law in relation to family property. On that point, the Supreme Court recognized
and validated the rule of customary law which had became notorious, to wit,
that ownership of family land is vested in the past, existing and future
members of the family. Thus, communal or
family land belongs to all members of the society or family and a member of the
family who is a co-owner is therefore not a stranger to any transaction
purported to have been made in relation thereto.[39]
To that end, the sale of family land
by even the head of the family without the consent of principal members of the
family is voidable. In the instant case,
the sale and conveyance of the family land by the head of the family and some
members of Bilewu section without the
concurrence of the Ato section is
voidable and can be set aside at the instance of any member of Ato section.
5. Human
Rights and Constitutional Breaches
In the bid to clean the body of
customary law in Nigeria of all despicable particles, the Nigerian Judiciary
has also often turned its search light towards the constitution and human
rights provisions and conventions. The
cases discussed hereunder presented opportunities for the courts to critically
examine the validity and reasonableness of certain customary practices, vis-a-vis
the constitution, and other relevant statutes.
a) Alajamba
Uke & Anor. v. Albert Iro[40]
In
this case, the Appellants wanted to enforce a purported custom of Nneato Nnewi
by which a woman was not permitted to give evidence in land matters. The Court of Appeal voided the custom for
being discriminatory against women and thus unconstitutional. The Court of Appeal, per Acholonu, JCA, used
the opportunity to re-emphasis the “watch – dog” role of the judiciary by which
it exorcises Nigerian Customary Law system of all indecent notions and
prejudices. According to him, “any
customary law which flies against decency and is not consonant with notions,
beliefs, or practices of what is acceptable in a court where the rule of law is
the order of the day, shall not find its way in our jurisdiction and should be
disregarded, discarded and dismissed as amounting to nothing”.
b) Solomon
v. Ogbodo[41]
In
the same spirit of frowning against customary practices that discriminate
against women for being patently unequal to men, the court in this case voided
a custom whereof a man could divorce his wife at his pleasure and will but the
wife could not obtain a divorce unless the husband gave his consent to it. This was held to be contrary to natural
justice, equity and good conscience.
c) Agbai
v. Okogbue[42]
In
this case, the question was the validity or otherwise of a custom of Alayi
Community in Abia State whereby every member of a given age bracket must belong
to the age grade association and pay development levies to it. The plaintiff’s contention was that he did
not belong to the said age grade association on religious ground-his faith was
against such membership.
The matter was litigated up to the
Supreme Court of Nigeria which held that any customary law found to be contrary
to any statute or the Constitution of the Federation or incompatible with an
existing law in force cannot be enforced by the courts. In court, the plaintiff/respondent was held
to be entitled to hold to the tenets of his religion, thought and conscience
which prohibited him from joining the age grade. Consequently, any custom that holds otherwise
is contrary to the constitution and therefore null and void to that
extent. A natural corollary of this line
of judicial reasoning is that an existing native law and custom may be altered
or entirely abrogated by a valid legislation which conflicts with it. The decision in Yaktor v. Governor of Plateau State[43]
on this point is very illustrative.
6. Effects
of Invalidation of Customary Law
The Power of the judiciary to
declare void, any customary law that fails repugnancy and other tests has the
effect of making such customary practice unenforceable and thus outside the
aggregate body of customary law in Nigeria.
If another good and valid custom is found capable of regulating the
issue in question, it is invoked and applied; otherwise, any relevant common
law principle or statutory enactment prevails.
An illustration can be found in Amachree
v. Kalio.[44] There, the plaintiff community claimed under
customary law to be entitled to some exclusive fishing rights in the Kalabari
River and contended that the defendant community could only fish in the same
River if they paid acceptable tribute.
The alleged custom was held not proved and that even if proved, it was
void for being repugnant to natural justice, equity and good conscience. Consequently, especially because there was no
alternative custom on the point, the common law rule, that the use of a navigable
River for fishing purposes was a public right, was applied.
7. Conclusion
From the foregoing discussion, it is
crystal clear that the Nigerian Judiciary has systematically and lawfully
played a very impactful role of cleansing the customary law in Nigeria of all
moral, social and even legal debris. The
result is that the body of customary law has evolved in obedience to such
judicial regulations and has indeed been better for it, kudos to the ever
vibrant and ever responsive and generally competent judiciary in Nigeria.
[1] Also referred to as
tradition.
[2] Ogbu, O. N., Modern Nigerian Legal System, (Enugu,
CIDJAP Press, 2007) 86
[3] Cap. E14 LFN 2004, s.2
thereof.
[4] (1991) 8 NWLR (pt. 209) 280.
[5] (1991) 7 NWLR (pt. 204) 391
at 416, per Nwokedi JSC.
[6] Ogbu, O. N., Note 2 ante.
[7] (2001) 11 NWLR (pt. 723) 44 at 52.
[8] The former as a mere usage or
tradition and the later as enforceable by courts.
[9] A typical example of which is
High Court Law Anambra State, 1987, s.18.
[10] Cap. E14, LFN, 2004, a
Federal Statute of general application in Nigeria.
[11] Ogbu, O. N., Op. cit., p. 106.
[12] Cap. 113, Revised Laws of
Enugu State, 2004.
[13] (1973) 3 LRN, 232.
[14] Agu and Odike, in their text,
Modern Nigerian Family Law and Succession
(Enugu, Vougasen Ltd., 2003), p. 46.
[15] (Unreported)
MD/UPA/19/76. Discussed in Agu and
Odike, Op. cit., note 14 ante.
[16] (1977) NWLR, 24.
[17] Cap. M7, LFN, 2004, s. 71 (1)
[18] (1988) 1 QLRN, 122 at 123.
[19] CA/B/109/95 (Reported in
Punch Newspaper of 1st Sept. 1997), p. 18.
[20] Suit No. MD/410/1977,
Reported in Agu and Odike, Op. cit,
44., note 14 ante.
[21] 12 CCALR, 35.
[22] (1931) 1 NLR, 47.
[23] (1994) 9 NWLR (pt. 368) 301.
[24] (2001) CHR, 179.
[25] (1976) 6 ECSLR, 208.
[26] (1989) 3 NWLR (pt. 109) 301.
[27] At p. 333 of the Report.
[28] No. 6, 2003 of the Federal
Republic of Nigeria.
[29] The Act, s.1. Other
provisions of the Act in sections 2, etc, are all tailored towards the same
objective of the welfare of the child.
[30] Suit No. MD/410/1977. Reported and Discussed in Agu and Odike, Op. cit., 44.
[31] (1997) 7 NWLR (pt. 512) 283,
later decided by the Supreme Court as Mojekwu
v. Iwuchukwu (2004) 11 NWLR (pt. 883) 196.
[32] (2004) 11 NWLR (pt. 883) 196.
[33] Per Uwaifo JSC at p. 216 of
the Report.
[34] Per Uwaifor, JSC, at p. 216
of the Report
[35] (1989) 2 NWLR (pt. 104) 373.
[36] Citing Nezianya v. Okagbue (1963) 1 All NLR 352, in Support.
[37] Okpala means first son or
head of the family.
[38] (1989) 3 NWLR (pt. 110) 417.
[39] Citing Miller Bros v. Ayeni (5 NLR, 42); Yoye v. Olubode (1974) 10 SC 209 in support.
[40] (2002) 11 NWLR (pt. 723) 196.
[41] (1974) 4 ECSLR, 547.
[42] (1991) 7 NWLR (pt. 204) 391.
[43] (1997) 4 NWLR, (98) 216.
[44] (1914) 2 NLR, 108.