People Perish For Lack Of Knowledge: Revisiting Of The Role Of Custom In The Development f Nigerian Legal System

March 3, 2014

PEOPLE PERISH FOR LACK OF KNOWLEDGE: REVISITING OF THE ROLE OF CUSTOM IN THE DEVELOPMENT OF NIGERIAN LEGAL SYSTEM

BY

DR. BABATUNDE ISAAC OLUTOYIN*[1]

INTRODUCTION

In the course of my educational advancement, I was taught in one of my history classes that there was a time when an African student demanded from Professor Trevor-Roper, a Professor of History at Oxford University sometimes in 1963 that he wanted to be taught African History.  The student was astonished at the reply the “distinguished” Professor gave the student.

He retorted:

Perhaps in the future, there will be some African history to teach but

at the present there is none. There is only the history of Europeans in

Africa.  The rest is darkness and darkness is not the subject of history.[2]

 

Without fear of contradiction, the Europeans that colonized Nigeria in 1863 by signing a “treaty of protection” with king Dosunmu (Docemo) of Lagos never met the place a terra nullius for there was effective animus occupandi.  As a matter of fact, they found a well structured government in addition to effective occupation.  This accounted for the success of their indirect rule system of government in the North, Partial success in Western Nigeria because of their imposition of “Warrant Chiefs” in place of the institutionalized Obaship system and failed abysmally in the Eastern Nigeria as evidenced in the Aba Riot of 1929, Akassa Raid of 1895 and the Benin Massacre which led to the deposition of Oba Overami Nogbaisi of Benin Kingdom in 1899.

Professor Trevor Roper is not alone in the opinion that African has no history or Law or better still, know what is justice as well as its administration. It is against this background that this paper is written to demonstrate that before the advent of the Europeans, Africans, including Nigeria had laws.[3] It is only that the laws and the mode of administering such could not be expected to be on the same pedestal and sophisticated as that of the European.  The paper examines the concept of a legal system, administration of justice in the traditional setting, Native laws and custom, its applicability, establishment, and the positive role of custom in the Nigerian Legal system.

CONCEPT OF NIGERIAN LEGAL SYSTEM

A system connotes an ordered set of ideas, theories or principles interacting within a given framework, or the organized relationship between the component parts of a body.[4] A legal system means the laws courts, personnel of the law and the administration of justice system in a given state, country or geographical entity. [5] Nigerian Legal System consists of the totality of the laws or legal rules and the machinery which obtain within Nigeria as a sovereign Country.[6]  From the above, the Nigerian legal system is made up of the laws, Courts, personnel of the law, and the administration of justice system in Nigeria.

Like all other legal systems, Nigerian legal system has certain features, which are peculiar to it among which is the acquisition of dual structure comprising customary and English laws.[7] Islamic Law, which has a wider application in the Northern States of Nigeria, which was introduced after the 19th century Jihads [8] is for all practical purposes treated as customary law.[9]  Other unique Characteristics of the Nigerian legal system include written and supreme constitution, [10] a hierarchical court system, strict adherence to the doctrine of judicial precedent, fusion of the legal profession, [11] Volume of external influence and so on and so forth just to mention a few.

CUSTOMARY LAW

Among the Yorubas, a tribe in South – West Nigeria, the word “Ofin, ase or ilana means law[12] and there is a popular saying that “ Ilu  ti ko si ofin, ese ko si ni ibe” translated “in a community that has no law, there is no sin”.  One may stop to ask, is there a Yoruba, or a Nigerian idea of law?  To assert as Holleman has done, that there is no African jurisprudence[13] is paradoxically, to sum up the African idea of Law.  As a matter of fact, the idea of law is as old as the country.  Some of the modern day system of administration has been with the Yorubas since the period of the Oyo Empire.[14] The principle of separation of powers [15] and its corollary of “Checks and balances” existed in old Oyo Empire. For example while the Alaafin acted as the “President” the Bashorun acted as the Prime Minister and the Oyomesis were the “Ministers” in the Oyo Cabinet.  Institutions like the Ogbonis,“Esos” etc acted as “checks and balances” on the power of other arms of government in the empire.  This must have happened before the principle was popularized by Baron Montesquieu.

To expect the idea of law in the English jurisprudence to be on the same footing as Nigerian or African law could be an exercise in futility. African Philosophy of a society is based on a belief in continuity of life, a life after death, and a Community of interest between the living, the dead and the generations yet unborn.[16]

Law in the traditional Yoruba society cannot be divested from the moral milieu in which it operated. It operated in a socio cultural atmosphere dominated by a belief in the existence of supernatural powers, and “a social structure controlled by a hierarchy of authorities.”[17] In matters of law and justice in Yoruba traditional socio – political system, proverbs assume a functional role as vehicle of juristic thought and therefore, a vital aid to judicial administration.[18]

CONCEPTUAL FRAMEWORK OF CUSTOM/CUSTOMARY LAW

The term “Custom” is used in a confusing variety of senses: local custom, usage, general custom and custom of the courts.[19] However, it is a particular rule which has existed either actually or presumptively from time immemorial and has obtained the force of law in a particular locality, although contrary to, or not consistent with, the general common law of the realm.[20] It has also been described as a certain manner of acting, regularly observed within the community.[21]

The term “customary law “  generally refers to the body of legal rules that evolved from the customs of the indigenous communities of Nigeria and which are used to regulate human conduct and govern Social relations and economic transactions.[22]  The Evidence Act [23] defines customary law ‘as a rule, which in a particular district has for long usage obtained the force of law. In Oyewumi v. Ogunesan [24] the Supreme Court comprehensively defined customary law as:

……. The living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static.  It is regulating in that it controls the lives and transactions of the community subject to it.  It is said that custom is the mirror of the culture of the people… [25]

CHARACTERISTICS OF CUSTOMARY LAW

Before a rule of Customary Law is applicable, it is required to meet some basic criteria necessary for its validity and acceptance.  As a representation of the behaviouristic patterns of a community the rule in question, to qualify as a rule of customary law must be in existence at the relevant time it is alleged or sought to be relied upon as a binding custom.[26]  Secondly, customary law is flexible, elastic and must have the capacity to adjust to changing circumstances, thereby absorbing the strain of dynamism to comply with the demands of a developing society.[27] In addition, the custom must be law as well. So the custom must exist and possess the element of coercion or sanction.[28] And it is usually unwritten in nature [29] which makes it generally vague and nebulous.  Finally, the custom must enjoy general application among the people but may vary from tribe to tribe or one ethnic group to another.

ADMINISTRATION OF JUSTICE IN TRADITIONAL AFRICAN SOCIETY

Record shows that before the advent of the Europeans around the 19th Century, the natives had laid down a solid system for the administration of justice in their different societies.[30]  In administering justice in African setting, the immediate cause of the dispute is not the sole concern of the Judges rather the main task is reconciliation to avoid the breakdown of law and order.[31]  Therefore the aim of justice administration is to maintain social equilibrium, a sine qua non of the corporate existence of all the members of the society of which flexibility was its essential feature.[32]

The machineries for administering justice were extensive and multi-layered in pre-colonial societies, and there were many agents and agencies for enforcing the rule of law.  Towards this end, there were specific places where cases were heard and settled.  These included the market, open squares, religious centre’s, family compounds as well as the residence of ward or quarter chiefs.[33] All these places served as miniature courts of arbitration [34] and here, the elders, priests and chiefs were the agent for formulating and enforcing the laws,[35] adjudicating disputes and administering justice. [36] Within the framework of African jurisprudence, technicalities had no place.

The trial procedure was versatile and informal and there was no legal representation. Though less cumbersome, like the English judicial system, charges, counter charges and allegations were heard by the court, witnesses were called, examined, cross-examined and re-examined, they were nevertheless not to be out of Court and out of hearing.[37] The agents enforcing the traditional law in these courts believed in, relied on, resorted to and employed the influence of the supernatural forces, ancestors and ordeals of various types in the detection of crimes and criminals, particularly where there was doubt as to guilt. [38] Judgment was delivered after the parties would have stated their case.

ADVENT OF THE EUROPEANS

The interaction of the British with the Nigerians came into limelight during the reign of King Dosumu of Lagos who in 1859 signed a seemingly innocuous treaty to allow a British consul to reside in Lagos and in 1861 was compelled to cede the Island after a brief war. [39] English law was introduced into Lagos in 1863, [40]and a Supreme Court of Lagos was established as a Court of Record which was to administer the common Law, the doctrines of equity and the statutes of general application which were in force in England on July 24 1874.[41] These laws were to be applied side by side our own customary law.

Although they recognized the customary laws of the people on colonization, they did not leave them intact all through the period of their administration.[42] They enacted ordinances which abolished some of the customary laws which they regarded as barbaric, primitive and uncouth. [43] There were others that were retained.  Since they were unable to undergo a comprehensive or complete study of the sociology and anthropology of the people, vis-à-vis their multifarious customs, they enacted ordinances providing guidelines on the criteria for the validity of customary law.[44]

 

THE EUROPEANS AND NIGERIAN CUSTOMARY LAW

Happily for the future of Customary Laws, a saving clause was included which provided that nothing should deprive the Supreme Court of the right to observe and enforce the observance or deprive any person of the right or benefit of any law or custom existing within the jurisdiction provided it was not repugnant to natural justice, equity and good conscience or incompatible with any local statutory provision.[45] The application of the “imperial laws” was to be subject to local circumstances. [46]

 

HURDLES SET FOR CUSTOMARY LAW

On arrival of the Europeans, they allowed the indigenous customary laws to be applied side by side English law but with a caveat. The caveat is that for such customary law to be applicable in Nigerian Courts, such a custom must surmount three sets of hurdles created by the colonialists. So, such custom will not be enforced if it is repugnant to equity, natural justice and good conscience, or incompatible, either directly or by necessary implication, with any law for the time being in force.  “The Evidence Act in section 18 introduced the third hurdle which is “such custom must not be contrary to public policy.[47] These three hurdles shall be discussed in seriatim.

 

Repugnancy doctrine

An author posited that the expression “repugnant to natural justice, equity and good conscience” when considered together seems imprecise in meaning.[48] Section 20(1) of the Cross Rivers State High Court Law provides that customary law shall not be applicable if it is repugnant to natural justice, equity and good conscience.  In approaching this subject, the attitude of the court is to consider them together rather than subjecting the customs to each of the requirements severally.  The reason for inserting this clause according to Lord Wright in Laoye V Oyetunde [49] might have been to invalidate “barbaric customs”. A cursory look however at a cross section of the cases before the courts reveals two broad situations .The first is the situation where the customary law evidences actual repugnance while the second type reveals the opposite.

Starting with the first, in  Edet v. Essien [50] the court held that a rule of customary law which gives the custody of a child fathered by a husband to another, merely because the dowry paid by that other had not been returned, was repugnant to natural justice, equity and good conscience.  Similarly in Mariyama V. Sadiku Ejo [51] the Court rejected an Igbira native law and custom under which a child born within ten months (and fifteen months after which the former husband last had intercourse with his wife) after a divorce belonged to the former husband of its mother.  In Mojekwu V.Mojekwu [52] it was held that the Oli Ekpe custom of Nnewi which discriminated against women by permitting the son of the brother of a deceased to inherit his property to the exclusion of his female child is repugnant to natural justice, equity and good conscience.

There are, however, some customary laws that actually lept over the so called hurdles of ascertaining customary law created by the Europeans.  These set of customs are on the other side of the divide.  In Uwaifo v. Uwaifo[53]  the supreme court held that under Bini native law and custom, the eldest son of a deceased person or testator is entitled to inherit without question the house or houses known as Igiogbe in which the deceased/testator lived and died. Neither testamentary disposition, nor family elders’ arrangement, can deprive the eldest surviving son of the Igiogbe, the house in which the deceased father lived and died. In otherwords, no one can derogate from the eldest son’s exclusive title to his father’s “Igiogbe’ upon final rites of Ukonwen. In Amachree v. Goodhead [54]  it was held that under Jekri customary law, a child born by a widow while still living with her deceased husbands family belonged to the family was in accord with the rule of natural justice.

 

A cursory look at the plethora of cases shows that the doctrine is more of doctrinaire rationalism than a principle of law that has to be tested on different customary laws of the people whose daily lives are governed by such laws.  Tobi was of the opinion that it is obvious from the trend of the decisions that the doctrine is used more as a weapon against the customs of the people rather than promoting them.[55]  He concluded that unless there is some pragmatic and activist approach to this important problem by our courts, customary law, a very potent source of Nigerian law, will continue to suffer in the judicial hierarchy in terms of applicable law.[56]

 

While one may be persuaded by this assertion, this writer is of the belief that the clogs in the wheel of the development of customary law are we Nigerians.  English judges could be excused for the decisions reached when the bulk of judges in Nigerian judiciary at the time were expatriates.  How could one explain these days when ALL the judicial offices in the country are manned by Nigerians and most importantly when some of them are experts in customary law.

 

INCOMPARTIBILITY THEORY

Another hurdle which customary law is subjected is that such customary law must not be incompatible either directly or by necessary implication with any law for the time being in force. [57]  There seems to be a small ambiguity in the provision of this enactment.  This is premised on the interpretation given to “any law for the time being in force”.

While the first school of thought in Adesubokan v. Yinusa [58]held that the law envisaged in section 33 of the High Court Law on the jurisdiction of the High Court in probate cases is the law and practice for the time being in force in England.  The Court however in Rotibi v. Savage[59] held that “any law for the time being in force” refers to local enactments.  The best approach to be adopted is that any law for the time being in force should encompass English and local law.

In applying this doctrine, in Guri v. Hadeija Native Authority[60] the court jettisoned a rule of the Maliki School of Moslem law which disallowed accused persons standing trial for highway robbery from defending themselves. Again in Ukeje V. Ukeje[61] The court relying on  the Supreme Court decision  of Agbai V. Okogbue[62] held that the Igbo native law and custom which disentitles a daughter from sharing in the estate of her deceased father was conflict with section 39 (1) (a) and 39 (2) of the 1999 Constitution and therefore void.

 

PUBLIC POLICY TEST

The final hurdle is that a custom shall not be enforceable if it is contrary to public policy.[63]  The term “public policy” has been described as nebulous and something that is difficult to define[64] However, In Meribe v. Egwu[65]  the court held that a custom that permitted two women to marry each other is not only repugnant but also contrary to public policy.  In Alake v. Pratt,[66] the Court held that it is contrary to public policy, a custom that places children born outside wedlock on the same pedestal as those born within. Similarly in Re Adadevoh [67] the court held that it was contrary to public policy a custom permitting legitimacy by acknowledgement of paternity as capable of encouraging sexual promiscuity.

 

 

ESTABLISHING CUSTOMARY LAW

According to Section 18 of the Evidence Act, 2011, a custom may be established in court by two processes.  The First is through judicial notice [68] while the second is by calling witnesses.[69]

A custom will be judicially noticed if it has been acted upon by a court of superior or coordinate jurisdiction in the same area to an extent which justifies the court asked to apply it.[70] Where a custom has not been judicial noticed, it can therefore be established either by calling of witnesses [71]or use of Books and manuscript.[72]

 

CONTRIBUTIONS OF CUSTOMARY LAW TO THE DEVELOPMENT OF NIGERIAN LEGAL SYSTEM

 

Admittedly, a legal system is the totality of the laws or legal rules and the legal machinery which obtain within a country. Therefore, Nigerian Legal system encompasses its laws, the courts, police lawyers, judges, court officials as well as the prison officials.  The ultimate aim of which is to ensure effective administration of law and justice.

Without prejudice to the statement credited to that English professor of History, Professor Hugh Trevor – Roper, it has to be put on record that before the advent of the Europeans, during their presence and even after their departure, customary law has played, is playing and will continue to play a significant role in the administration of justice far as Nigeria is concerned.  It must not be overlooked that customary law has its inherent defects, however, one must not as a result of this throw away the “baby with the bathwater” The roles played by customary law in the development of Nigerian Legal system are hereunder discussed.

 

AREAS IN WHICH THE IMPACT CUSTOMARY LAW IS NOT PRONOUNCED

While customary law aided the development of certain substantive law courses, there are so many areas which it is silent or better put, where its impact is not felt. Notable among them are International Law, Law of Evidence, Road Traffic, Custom and Exercise, Insurance, Banking and Negotiable Instruments.  The reason for this may not be unconnected with the notion that these classes of subjects are unknown to customary law.[73]

 

AREAS IN WHICH CUSTOMARY LAW IS INADEQUATE

Law of Tort

Although compensation is often awarded to victims of wrongful acts under the various customary laws, it is observed that it is yet to be certain whether there is any established general principle of tortious liability under our customary laws as there is under the English law.[74] At Customary Law, an action can be based on adultery simpliciter whereas under English law it has to be employed as a ground for dissolution of marriage as evidence of irretrievable breakdown of marriage before it can be entertained.[75]In addition, one cannot divorce his wife at will except she commits any of the offences listed in Sections 15 and 16 of the Matrimonial Causes Act.

 

Law of Contract

Admittedly, Customary law recognizes certain kinds of Contract such as Sales, Pledges of land, Sales and Bailment of goods, Loan, Apprenticeship of various kinds, Cooperative labour contact etc, it is doubtful whether there is a general principle of contractual liability under any customary law in Nigeria.

 

 

AREAS IN WHICH CUSTOMARY LAW CONTRIBUTED TO THE DEVELOPMENT OF NIGERIAN LEGAL SYSTEM

As reiterated earlier, there are certain areas of the law where customary law actually contributed to the development of Nigerian legal system.  Some of the areas are as follows.

 

Environmental Law

Preservation and Protection of the Environment is the responsibility of all and sundry.  In view of the above, the role played by Customary law in the preservation and protection of the environment cannot be underestimated especially in the area of sustainable development, Biodiversity Conservation and Regeneration in Nigeria and so many others. For example, a statement credited to an Ijebu-Ode chief that “I conceive that land belongs to a vast family of which many are dead, few a living and countless members are yet unborn[76]remains the bedrock of the principle of Inter-generational equity and Sustainable development principles popularised at Stockholm and Rio. Similarly, a customary law against bush burning and tree felling aims at protection of the environment under Iroko customary law while hunting can only be carried out by members of the hunting society.[77] The aim of these is to prevent overhunting as well as preserve some animals that of endangered species and then take care of the aspirations and interest of the present and future generations.

 

Matrimonial Causes

All natives of Nigeria are subject to customary law in matters pertaining to marriage.  The common practice today is that most marriages under the Act are always preceded by a customary marriage.  This practice ensures that a couple is married under customary law of their tribe and also married under the statute. This type of marriage is called “Double – Deck Marriage.” [78] Although one school of through believes that customary marriage supersedes statutory marriage.[79] It is sad that majority in the other school were of the opinion that subsequent statutory marriage supersedes customary marriage.[80] One is of the opinion that both laws are independent of the other in the sense that while it is conceded that customary law is unknown to statutory marriage, same goes to English law.  And when faced with this situation, the best approach is first to dissolve the statutory marriage which came later before proceeding to put asunder what customary law has joined together.  Stricto sensu, the mistake people do make is that where their customary marriage is further “cemented” by a statutory marriage and the statutory marriage is dissolved, technically, they are still married couple because the customary law marriage is still intact.  The Supreme Court of Nigeria should seize the opportunity to address this matter whenever the opportunity provides.

 

Law of Arbitration

In matters of procedure, the judicial approach of the so called less advanced societies, with emphasis an reconciliation and the maintenance of the social equilibrium as the primary objective of judicial administration is what is now in vogue today.  As a practical way of decongesting the courts, many Nigerian Courts are encouraging settlement of issues between parties especially through mediation, Conciliation, negotiation and arbitration.[81]

 

Equity

Customary law has to a reasonable extent affected the development of equity.  The essence of African jurisprudence is that in a dispute, no party is totally at fault or completely blameless. Consequently a high value is placed on reconciliation to avoid the severance of social relationships.  Some of the maxims of equity have their place in customary law for example, Equity aids the vigilant and not the indolent – “Eni yara logun ngbe” Where then equities are equal, the first in time is stronger in law “Bi igi ba wo lu igi, ti oke re la ko ngbe”, just to mention a few.  Various customary laws in Nigeria were largely influenced by the principles of equity.

 

CONCLUSION

From the foregoing, it is crystal clear that customary law has been a veritable source of law in the development of Nigerian legal system. As noted earlier in this paper, the doctrine of separation of power and check and balances in governance has been  with us in Nigeria during the old Oyo empire before it was popularized by Baron Montesquieu, so also was the principle of rule of law.

Indeed, African has a solid system of justice administration before the advent of the Europeans with only caveat that it was less sophisticated than that of the Europeans, and could not meet the bubbling life of the colonialist.  Nevertheless, justice was done particularly with less emphasis placed on technicalities.

Whatever has advantage must definitely have its side effects. Though uncertainty and slowness in crystalling into law,[82]corrupt practices in different dimension were prominent in the African system of administration of justice, these are not enough to debase the system.[83] It is over ripe at this present day setting that customary law be codified into what will look like Nigerian common law. This will ensure further certainty and predictability of customary law in Nigeria. It is necessary that a committee be put in place to address this issue with the urgency it demands. Where, however, the non African accepts that customary law exists in Africa, he believes it is nothing but a detestable and despicable thing that can only thrive in the society of irredeemable primitive people. It is therefore preposterous for someone to conclude that … “they cannot afford to amuse themselves with unrewarding gyrations of the barbarous tribes in picturesque but irrelevant corners of the globe”.[84]

 

 

 



[1] *LL.B (Hons) Benin, LL.M, M.Phil, Ph.D (Ife) BL. (Nigeria).  Senior Lecturer/Acting Head, Department of Public Law, Ekiti State University, Ado Ekiti. Also a Barrister and solicitor of the supreme court of Nigeria. E.mail address: eruks63@yahoo.co.uk.s

[2] See Anyebe A.P. (1985) Customary Law: The war Without Arms. Enugu, Fourth Dimension Publishing Co. Ltd. P.19.

[3] People use to erroneously say in Yoruba proverb that “Ki agbado to daye, nkan ni adiye nje” meaning that fowl has been feeding on something before the arrival of Corn.  Biblical evidence, however, faulted this in that according to creation story, Corn (Plant) was created before  Fowl (animal). See Genesis Chapter 1 verses  12-25   Holy Bible (1986) Authorised King James Version. U S A World Bible Publisher Inc Page 1

[4] Hornby A.S. (ED) (1974) Oxford Advanced Learner’s Dictionary of Current English. 4th edition oxford, Oxford University press

[5] Malemi Ese (2009) The Nigerian Legal system; Text and cases. 3rd edition. Lagos, Priceton publishing co. P.1

[6] See Okonkwo Co (ed) (1980) Introduction to Nigerian Law. London, Sweet Maxwell P 40

[7] See Folarin V. Durojaiye (1988) 1 NWLR. P 351

[8] In the 19th Century there were the Sokoto Jihad led by Uthman Dan Fodio of 1804 for the propagation of Islam.  This was followed by Massina Jihad of 1818 and the Jihad of Alhaji Omar 1815 . For a comprehensive study of the 19th century Jihads see Ajayi J F A, Crowther M (1972) History of West Africa. Vol I, Columbia University Press, pp 230,501,508.

[9] See Asein J.O. (2005 ) Introduction to Nigerian Legal System 2nd edition, Ibadan, Sam Bookman Publishers. P

[10] See Section  1 (1) and (3) of the Constitution of the Federal Republic of Nigeria 1999

[11] In England where the laws in Nigeria are borrowed, legal practitioners graduate and admitted to the Bar either as Barrister or Solicitor alone whereas in Nigeria, once a legal practitioner is admitted to the Nigerian Bar, he is called as a Barrister  and Solicitor of the Supreme Court of Nigeria.

[12] UPPLC (2008) A Dictionary of the Yoruba Language. Ibadan, University Press Plc, P. 106

[13] See  Holdeman J.F. (1974) Issues in African Law, The Hague, P.13

[14] See Akinjogbin, I.A and Ayandele E.A(1999) “ Yorubaland Up to 1800” in Obaro Ikime (ed) Groundwork of Nigerian History. Ibadan, Heinemann Educational Books (Nigerian) PLC , pp 121 – 143

[15] For a detailed study of the doctrine of separation of power see Malemi Ese ( 2008) Administrative Law.3rd ed. Lagos, Princeton publishing Co. p 52.

[16] This is what the idea of sustainable development is all about on. Various Conferences held on Environmental Law centre’s on the principle of the equitable use of the resources of the planet in a way that the interest of the present and future generations will be taken care of.  This is called the theory of intergenerational equity.  See Weiss E.B. (1989) In Fairness to Future Generations,: International Law, Commission Patrimony and Intergenerational Equity, New York Transnational Publishers Inc., See also Dike K.O. and Ajayi J.F. (1968) “African Historiography” in David I Sills (ed) International Encyclopedia of the Social Sciences. New York. Vol 6 P. 394.

[17] See Abimbola W. (1975)” Iwapele: The Concept of Good Character in Ifa Literary Corpus” in Abimbola W (ed) Yoruba Oral Tradition.  Ile Ife, University of Ife Press P. 394.

[18] See Adewoye O (1987) “Proverbs as Vehicle of Juristic Thought Among the Yoruba”  4 OAULJ P. 1

[19] See Dias RWM (1976) Jurisprudence. 4th ed, London, Butterworths, P 246.

[20] See Halburys Laws of England, 46th Edition.

[21] See Olivercroner K. (1971) Law as Fact P. 17 Cited by Akomolede I. (2008) Introduction to Jurisprudence and Legal Theory.  Lagos, Niyak Print and Law Publications, P. 158

[22] See Beredugo A.J. (2009)Nigerian Legal system; An Introductory Text – 3rd Edition, Lagos, Malthouse Press Ltd. P.55

[23]  Laws of the Federation, 2011 Section

[24]  (1990) 3 NWLR (Part 137) P.187 per Obaseki JSC at P. 207.  This position of law has been adopted and followed in Whyte v. Jack (1996) 2 NWLR P 407 at 420, Nwagbogu  v. Abadom (1994) 7 NWLR                357 and restated in Ogolo v Ogolo(2004) 8 WRN 1 at 12 per Edozie JSC.

[25] See also Owoniyi v. Omotosho (1961) 1 All NLR 304 where Bairamian F.J. of the Supreme Court of Nigeria defined Customary Law as “a mirror of accepted usage among a given people”.

[26] See Dawodu v. Danmole (1958) 3 FSC 46, see also Adeniji v Adeniji (1972) 1All NLR 301. In Kimdey.v Military Governor of Gongola State (1988) 2 NWLR (PT 77) p 445 at 461, Karibi- whyte JSC said that one of the requirement of customary Law is that it must be in existence at the material time.  Speed Ag.CJ in Lewis v. Bankole (1908) 1 NLR 81 at 83 held that the native law and custom in order to be enforceable must be existing native law and custom, and not that of by gone days.

[27] See Agbai v. Okogbue (1991) 7NWLR 391. In  Lewis v. Bankole (1908) 1 NLR 81 at 100 – 101, Osborne CJ held that indeed, one of the most striking features of West African Native custom, to my mind, is its flexibility.  It appears to have been always subject to motivates of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its individual characteristics.  In Alfa v.Arepo  (1963) WNLR 95 at 97, Duffus J observed that customary law is not, however a static law and in my view, the law can and does change with the times and the rapid development of social and economic conditions.

[28] See Tobi N (1996)  Sources of Nigerian Law. Lagos, MIJ Professional Publishers Ltd, P.105-106.

[29] In Alfa v. Arepo (Supra) the court held that ……”this law is unwritten and I agree with the above passage from Lloyds book that it owes its authority to the fact that the custom has been established from ancient days.”

[30] See generally Elias To (1963) The Nigerian Legal system  2nd ed; Adewoye O (1979) The Judicial system in Southern Nigeria, London, Sweet & Maxwell

[31] See Olatunbosun I. A (2008) “What is wrong with African Customary Criminal Justice System” Vol. 13 (1&2) African Journal of International Affairs and Development;  1 at  2

[32] See Allot A.N. (1960) Essays in African Law.  London, Butterworths, P 232; Obilade A.O. (2001) The Nigerian Legal system (Reprint), Ibadan, Spectrum Books Ltd P. 83, Park A.E.W. (1963)  The Sources of Nigerian Law. Lagos, African University Press, 63.

[33] For a detailed reading on customary arbitration under the traditional system of justice, See Sokefun J.A (2001) “ Dynamics of Customary Arbitration in Nigeria”. Vol. 3 Olabisi Onabanjo University Law Journal p 175

[34] For a detailed study on the division and separation of powers in governance, a case of Oyo Empire is instructive. See  Agbaje – Williams B. (2005) “Yoruba Urbanism: The Archaeology and Historical Ethnography of Ile-Ife and Old Oyo” in Ogundiran A (ed)  Pre Colonial Nigeria: Essays in Honor of Toyin Falola. Eritrea, Africa World Press inc P. 215

[35] See Olaoba O.B. (2005)” The Yoruba Palace as Court of Arbitration.” in Ogundiran A (ed) Pre Colonia Nigeria; Essays in Honour of Toyin Falola. Eritrea, Africa World Press inc, P. 241

[36] The First indigenous lawyer was Sapara Williams and was called to the English Bar in 1875 Consequently, the use of legal representation was alien to the institution of justice administration in the Pre colonial era.

[37] For a detailed examination of how justice was administered in the traditional setting before the advent of the Europeans in Erinmope Ekiti, a town in Ekiti State, South West Nigeria, see Babatunde I.O. (2013) “ Administration of Justice in Traditional and Modern Setting in Erinmope Ekiti.” in Adeyemi. O and Allen-Alebiosu O (eds) Erinmope: A Historical, Cultural and Socio-Economic Study of an Ekiti City. Ilorin,Unilorin Press. P 63.

[38] See Tobi N supra, P.4

[39] See Umozurike O.O International Law and Colonialism in Africa. 1st ed, Nwamife Publisher, P.1

[40] By ordinance No 3 of 1863.  Three reasons were identified why English law was introduced. First, since the British Colonised Nigeria, the introduction of English law is a relic or by-product of Colonialism.  Second, is the inadequacy of customary law to cope with the bubbling commercial life of the new colony and the dynamics of the colonial life. Thirdly, is the belief and conviction of the colonial masters that English law is the fountain and cynosure of justice.  See Tobi N Supra P. 17 – 18.

[41] Section 19.

[42] See Babatunde I.O. (2009)” English Jurisprudence and African Law: The Need to Revisit R.v. Udo Aka Ebong (1947) 12 WACA 139” Vol 1, No 1 OOULJ  p 201

[43] This is true to some extents see for instance cases like Edet v. Essien (1932) 11 NLR 47; Guri v.Hadeija Native Authority (1959) 4 FSC 44;Mariyama v. Sadiku Ejo (1961) NRNLR 81 just to mention a few.  We shall discuss this in details later in this work.

[44] See Tobi to Supra at P. 111

[45] A third requirement, the public policy doctrine was introduced by the then section 14(3) of the Nigerian Evidence Act: (Now Section 18(3) of the Evidence Act (2011)

[46] See Agbede 10 (1991) Legal  Pluralism, Ibadan, Shaneson Co. Inc Ltd. P.2.

[47] See section 18 (3) Evidence Act, 2011.

[48] Asein J.O. supra, P.129

[49] (1944) AC 170

[50] (1932)  11 NLR 47

[51] (1963) NRNLR 81

[52] (1997) 7NWLR 283.

[53] (2013) 10 NWLR (Pt 1361) P 185  See further Osahon V. Registeree Trustee CCCCA (2002) INWLR (Pt 749)P. 675; Agidigbi V. Agidigbi (1992) NWLR  98; and Ogiamen V. Ogiamen  (1967) NWLR 245.

[55] Tobi N Supra at P. 121

[56] Ibid

 

[58] (1971) N.N.L.R. 77;

[59] [1944] 17 NLR 77

[60] [1959] 4 FSC 44

[61] [2001] 27 WRN 142

[62] (1991) 7 NWLR 391. See also Uke V. Iro (2001) 17 WRN 172

[63] See Evidence Act 2011; Section 18 thereof

[64] See the comment of Burrough J. in Richardson V. Mellish (1824) 2 Bing 252 where he described public policy as an unruly horse.

[65] (1976) 3SC 23.  This case has drawn criticism from some quarter. See for example, Amechi EEA (1981) “Woman to Woman Marriage; Its Legal Significance”. Vol 1 No 1 Journal of Society, Culture and Environment Research, (CENSCER). P 20.  The writer tries to justify five instances under which woman to woman marriage is usually contracted  (i) A married woman with children may provide the dowry for her husband to marry another woman (2) A woman, married or unmarried, may provide the dowry for her son or other male relative to marry.  (3) A barren woman may marry another woman on her own behalf. (4) A single woman may marry another woman on her own behalf.  However her excuses for permitting woman to woman marriage appears to have been chattered when the supreme court held that “in every system of jurisprudence known to us, one of the essential requirements for a valid marriage is that it must be the union of a man and a woman thereby creating the status of husband  and wife.  Indeed the law governing any decent society should abhor and express its indignation of a “woman to woman” marriage, and where there is a proof that a custom permits such an association, the custom must be regarded as repugnant …and ought not to be upheld by the court (See p 32 – 33).

[66] [1955] 15 WACA 20

[67] [1951] 13 WACA 304

[68] Angu v. Attah (1921) PC 1874 – 1928.43

[69] See Giwa v. Erinmilokun (1961) All NLR 294

[70] See Larinde v. Afiko (1940)6 WACA 108; Cole v. Akinyele (1960) 5 FSC 84 and Romaine v. Romaine (1992) 4NWLR 650

[71] See Inyang v. ita (1929) 9 NLR 84; Akpodike v.Abueze (2002) 12 WRN 58. See  also Osadebey v. Osadebey (2013) 3 NWLR (Pt 1342) P584

[72] For example in Olusesi v. Oyelusi (1986) 3NWLR 634 the Court of Appeal was aided by T.O Elias Nigerian Land Law in the determination of “royal estates”  or “Stool Land”. Also, in Oyelowo v. Oyelowo (1987) 2 NWLR. 243 Nwabueze’s Nigerian Land Law was relied upon in establishing the fact that the rightful and natural place of children in Nigeria is their father’s house.

[73] See Salau V. Aderibigbe (1963) WNLR 80; Bakare V. Coker (1935) 12 NLR 15.

[74] See Agbede i. (1991) Legal Pluralism; up at, P 101.

[75] See S. 15 (2)(b)Matrimonial causes Act, lfn 2004.

[76] See Ola C.S. (1977)Town and Country planning Law in Nigeria. Ibadan, Oxford University Press  P. 15

[77] See Usman A.K (2012) Environmental Protection Law and Practice, Ibadan, Ababa Press, p 190

[78] For an in-depth study of a Double Deck marriage, See Kolawole A.K.A (2009)” Validity and Effect of “Double – Deck Marriages in Nigeria” 1 OOULJ. P. 1

[79]  See Asiata v. Goncallo  (1900) 1NLR 41; Smith V. Smith  (1924) 5 NLR 105 and Achike I.A. (1967) “Statutory and Customary Marriages : A comparison.” Nigerian Law Journal, pp 49-60

[80] See Elias T. O (1963) The Nigerian Legal System, London, Routledge, Keegan & Paul, PP 41 – 45; Adegbola v. Folaranmi (1921) 3 NLR 39 Akparanta V. Akparanta unreported suit no E/14D/7D; Bassey –ita okun V. Administrator – General of cross River State  (1992) 6 NWLR (P + 248) P .473; Jadesinmi V. Okotie – Eboh (1996) 2NWLR (pt.429) p.128 and Nwogugu E .I (1990) Family Law in Nigeria,  Ibadan, Heineman Publishers, 3rd ed,

[81] See Adewoye A (1987)” Proverbs as Vehicle of Juristic Thought Among the Yoruba” Supra at P 16. See further Okpuruwa & Mrs. V. Okponam (1988) 4 NWLR (Pt 90) 554 at p. 587

[82] See Akomolede T.I. (2008)  Introduction to Jurisprudence and Legal Theory (Supra) p 168

[83] See Olatunbosun I.A. (2008) “What is wrong with African Customary Criminal Justice System” Supra at P 11

[84] Professor Hugh Trevor – Roper. Supra.