VALIDITY OF CUSTOMARY LAW IN NIGERIA

ABSTRACT

Customary law is an important source of Nigerian law. Its influence on the Nigeria Legal System is enormous. It is indigenous and reflects the customs and culture of the people. But it is not uniform and harmonious. It is fluid and diversified. Besides, it is not necessary in full conformity with the fast pace of Western civilization being forced on the entire mankind by globalization. It is inundated with multiplicity of customs complicated by superstitions. Hence it is difficult to take judicial notice of it without conditionality.

Although the issue of subjecting these customary laws to the validity test if they must be relied on as a source of law in Nigeria, emanates from the biased view of our colonial masters of the Nigerian customs as barbaric, sewage and superstitious, it is still worthy to note that the nature of customary law demands that it be so tested so as do remove some of the superstitious elements and harsh nature.

The question has been: why subject our customary laws to a test of validity? Could it be to remove superstitious and harsh elements inherent in them? Or could it be that they lack exactness because of non-codification? Why do courts have difficulty of taking judicial notice of them? This is the crux of this work: the validity of customary law as a source of Nigerian law.

CHAPTER ONE

INTRODUCTION

1.1 Background of the Study

Before the introduction of English Laws in Nigeria, there were already made laws which governed the relationship, agreement and interactions between the people. This law emerged from the existing customs binding the people in agreement. These laws regulated the affairs of local life. These laws are called customary laws. Customary law, or native law and custom and its enforcement system was the only legal system that existed among the indigenous peoples and communities, long ago, before the colonialists, and other religions and systems of law came and took root in the area known today as Nigeria and elsewhere in Black Africa. In the communal legal system, which obtained before the advent of modern legal system, customary law was the law and it enjoyed respect.

The communal courts cited on the basis of customary law and their sanctions which were backed by coercion all derived from custom. However, today customs, do not enjoy the privilege of automatic enforcement in the modern courts systems as was the case in the days when communal and village courts held sway, applying customary law backed with the necessary coercive machinery of the community. Today, for customs to be applied as a customary law in our modern and integrated court system, the custom must satisfy or pass the validity tests, which is a prerequisite for its application.