Adeola

Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021
UNIVERSITY OF LAGOS
FACULTY OF LAW
INTRODUCTION TO NIGERIAN LAW AND LEGAL SYSTEM I (JIL 111) LECTURE NOTES

CUSTOMARY LAW

This class will provide a discussion of the content of traditional customs as a primary source of
Nigerian law, and will be aimed at helping the student understand:

a. The nature and characteristics of customary law in Nigeria

Having studied some of the general and historic sources of Nigerian law, it is important to begin a
consideration of more specific sources, which, though they are primary sources of law in Nigeria,
are not readily available or applicable, and may be applied as of choice. This class will first discuss
the distinct features of Nigerian customary law that distinguish it from other sources of law. Then,
we will look at how the courts find and determine the existence of a customary law, in other words,
the sources of customary law. Finally, we will discuss different conditions which the courts would
apply in determining the application of customary law to particular cases and parties.

Nature and Features of Customary Law

Customary law is regarded as a very important source of Nigerian law, as these laws governed
Nigerian societies prior to the introduction of English Law during the pre-colonial era. These laws
consist of unwritten ethnic traditional rules and written Islamic rules, depending on the state in
question. Many of the states in Southern Nigeria apply traditional customary law, while states in the
North apply Islamic Law or Sharia. In this class, we will focus on the ethnic traditional rules, which
are largely unwritten. Since the introduction of general English law into the Nigerian legal system,
customary law has been given limited application. For example, customary law will not be applied
by the Nigerian Courts where such law is seen as being inconsistent with natural justice, equity and
good conscience, and it is left for the courts to decide when such customary law is so inconsistent.1
In Dawodu v. Danmole,2 the trial judge held that the idi-igi system of inheritance known to Yorubas
was repugnant, as it prescribed division of property of a deceased per stripes (division amongst
wives who would then divide amongst their children) rather than per capita (division amongst the
children). The Judicial Committee of the Privy Council disagreed with this decision, and held that
this custom was not repugnant to natural justice equity and good conscience. In Edet v. Essien, the
appellant based his case on a custom which conferred on him ownership of a woman’s children,
which the latter had had for her husband, based on the fact that he had paid a dowry for the same
woman when she was a child, and was therefore her lawful husband. The court held that the
custom in question had not been established, and that even if it were, it would be repugnant to
natural justice, equity and good conscience, and therefore invalid and inapplicable by the courts.
1
See Section 26(1) High Court Law of Lagos State, Cap 52, Laws of Lagos, 1973.
2
(1958) 3 F.S.C 46

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Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021
From the above introduction, there are certain features that can be identified as being specific to
customary law, and which may be seen as affecting the application of customary law, especially in
the face of conflict with other sources of law. Some of the notable features of customary law are:

1. Customary Law is based on Usages and Customs: This source of law is based on the
practices of traditional societies, which have become recognized as binding on the members
of those societies. Therefore, such usages must not only be practiced amongst the members
of the community, they must also be recognized as constituting part of the obligatory rules
by which members of such communities are guided in their actions and relations. In Edet v.
Essien, the court found that the custom which the claimant sought to rely on was not a
recognized custom, so it could not even be applied as law. Issues as to who would recognize
the custom and how it can be proven that such custom is recognized are dealt with under
discussions on the sources of customary law.
2. Customary Law is Unwritten: Customary law is based on usages and practices, so it is
largely unwritten, and the evidence of such customary law is usually passed on orally by
members of the communities in question. This does not mean that evidence of usages and
practices of communities which constitute customary law cannot be found in writing, but
rather that there are no formal written sources which contain an official enactment of these
laws. The laws gain their validity from practice and recognition, and not from a written
source, so they are unwritten.
3. Customary Law is Flexible and Dynamic: This type of law, especially since it is unwritten
and there are no laid down procedures for changing its content, can easily be changed by a
change in the attitudes of a particular community. Once the usages of the community change
and it can be proven that a new usage has arisen amongst members of the community,
which they recognize as binding on them as members of that community, then the old rule
ceases to be binding and the new rule becomes a new enforceable rule of customary law.
The advantage of this feature is that it means that the law can very easily be modified to
suits rising trends in the community where it is applied.
4. Customary Law is Particular and Diverse: One feature of Nigerian customary law is that it is
diverse, and is not universally applicable throughout the country. This means that
customary law applies only within the community where it is recognized and is therefore
particular to that community, so that a custom recognized in one community cannot be
applicable in another community, unless it is recognized as binding in that other community
as well. This means that customary law in Nigeria is very diverse as it may differ from
community to community, so we would have different customs applicable in the different
parts of the country.

The above characteristics make customary law special in its discovery and application, and
determine how the courts will seek to identify the existence of a particular rule of customary
law, and when and how the identified rule will be applied, as will be shown below.

Sources of Customary Law

Since customary law is generally unwritten, it is more difficult to prove its existence in court than
other laws, of which there are records. The main source of customary law, from which it derives its
validity is the accepted and recognized usage of the community where such law applies, but the
courts must also consult some material sources in order to determine the existence of such
recognized usage, and that is what we are concerned with here. The Evidence Act provides for the

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Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021
procedure for proving the existence of customary law in a court of law, and the onus is on the
person asserting the existence of a customary rule to prove same. Section 14 of the Evidence Act
provides that

(1) A custom may be adopted as part of the law governing a particular set of circumstances if it
can be noticed judicially or can be proved to exist by evidence; the burden of proving a
custom shall lie upon the person alleging its existence.

(2) A custom may be judicially noticed by the court if it has been acted upon by a court of
superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked
to apply it in assuming that the persons or the class of persons concerned in that area look upon
the same as binding in relation to circumstances similar to those under consideration.

(3) Where a custom cannot be established as one judicially noticed it may be established and
adopted as part of the law governing particular circumstances by calling evidence to show that
persons or the class of persons concerned in the particular area regard the alleged custom as
binding upon them:

Provided that in case of any custom relied upon in any judicial proceeding 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.

From the above provision, the two means by which the court will accept evidence of customary law
are by judicial notice and by proof. Judicial notice of a customary law rule will usually be taken
where such a custom, in relation to the same area, has been proven in a coordinate or superior
court and judicial notice taken of it by that court. In Santos v. Okosi IndustriesLtd & Anor,3 a case
brought before a court in Epe area in Lagos State, the court did not take judicial notice of a
particular custom that had been proved before a court in Calabar in Henshaw v. Henshaw.4 A higher
court is not bound by the decision of a lower court regarding the existence of a custom. The Court of
Appeal did not take judicial notice of a rule of customary law that had been proven in a high court,
holding that there had not been “frequent proof” in court, in Larinde v. Afiko,5 although this is not a
requirement under the Evidence Act. In Osinowo v. Fagbenro,6 the customary law rule had been
proven in court three times before, and the court took judicial notice of it without requiring proof.

Regarding proof of customary law in court, section 57 of the Evidence Act provides that

(1) When the court has to form an opinion upon a point of … native law or custom, … the
opinions upon that point of persons specially skilled in such … native law or custom, … are
relevant facts.

(2) Such persons are called experts

Section 59 goes further to provide that

3
(1942) 8 WACA 89.
4
(1927) 5 NLR 77.
5
(1940) 6 WACA 108. See Asein, op cit, p. 122.
6
(1954) 21 NLR 3. See Asein, op cit, p. 122; See also Cole v. Akinleye (1960) 5 FSC 84 (the legitimacy case) which
took judicial notice of proof of a custom in Alake v. Pratt (1955) 15 WACA 20.

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 Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021
In deciding questions of native law and custom the opinions of native chiefs or other persons
having special knowledge of native law and custom and any book or manuscript recognised by
natives as a legal authority are relevant.

This means that evidence of customary law can be given by experts or by recognized books and
manuscripts.7 Although the Act does not make a distinction between the need for evidence in
customary courts and in non-customary courts, it has been held that there is no need to prove
customary law in a customary court.8 Situations where the need may arise to prove customary law
in a customary court include the following

a. Where the law of the court is not the law prevailing in the area of jurisdiction of the court
b. Where the members of the court are from an area different from the area of jurisdiction of the court
c. Where the area of jurisdiction of the court is so wide that the members of the court will not be expected to
know all the customs of the constituent areas
d. Where the members of the court are not versed in the custom sought to be relied upon9

Customary law is a very important source of law in Nigeria as it contains the usages of Nigerians,
which develop out of the peculiarities of Nigerian society. The courts have come up with different
ways to identify the existence of a particular rule of customary law and the areas within which it
applies. The next section will provide a discussion of how and when the courts apply these rules of
customary law once they have been identified and their validity confirmed.

Application of Customary Law

Having studied the sources of Nigerian law, and learnt the historical development of those sources,
it is important to also study the practical application of the sources in cases between different
classes of parties. This class will first discuss the definition of the different classes of parties who
may appear before Nigerian courts, with reference to their origin. Then, we will look at how the
different sources of law apply to these different classes of people. Finally, we will discuss the issue
of hierarchy of the different sources of law.

Classes of Parties under Nigerian Law

Before independence, Nigerian society was divided into natives and non-natives. The natives were
usually people of Nigerian or African origin, who lived in traditional societies, and whose personal
matters were governed by the customary law of their area of origin. Non-natives were usually
British colonialists who wished for their personal matters to be governed by a set of rules more
familiar to them than Nigerian customary law, and who lived mostly in the cities and operated the
government. The rationale between this legal “divide” was that each be governed by the system
more familiar to him/her. On the face of it, this was a simple system that aided effective regulation
of socio-legal matters between different parties, but questions would arise where two parties from
different classes were involved in a single matter, or where the subject matter of an action was
governed by one legal system and the parties were governed by another. These are discussions that
we will engage in during this class.

7
Ibrahim v. Barde (1996) 9 NWLR (pt 474) 513
8
See Edokpolor v. Idehen (1961) WNLR 11; Odufuye v Fatoke (1977) 4 SC 11
9
Ogbu, op cit, p. 97

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Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021
In different parts of the country, legal parties were referred to by different terminologies, and
while, in some instances, the terminologies meant the same thing, in others, they were different. We
will now look at the different classifications of parties in the different regions of the country.

In the former Eastern region of Nigeria, parties were classified as “persons of Nigerian descent” and
“persons who are not of Nigerian descent”;10 in the former Western region, the classification was
“Nigerians” and “non-Nigerians”,11 and; in Lagos State and the former Northern region, the law
referred to “natives” and “non-natives”.12

None of these terms were defined in the laws establishing the classifications, so it was necessary to
look outside those laws in other instruments for such definitions. With regard to the classification
under the High Court Law of the Former Eastern region, there was no definition of a “person of
Nigerian descent” available in any other legislation, so it would be left to the courts to determine
who was a person of Nigerian descent, perhaps with assistance from legislations with similar
provisions. One author has suggested that the definition of Nigerian in the Customary Courts Law of
Western Nigeria may serve as a guide when defining “persons of Nigerian descent”.13

The classification of “Nigerian” under the Western Nigeria High Court Law is not defined under that
Law either, but the Customary Courts Law of Western Nigeria defines Nigerian as

A person whose parents were members of any tribe or tribes indigenous to Nigeria and the
descendants of such persons and includes any person one of whose parents was a member of
such a tribe

This definition may also be read in conjunction with the definition of a Nigerian citizen provided for
in the Constitution, although the latter covers a wider range of persons, and is not limited to people
of Nigerian descent, but also extends to people born in Nigeria or married to Nigerians, amongst
other things.14 It should be noted, however, that the provisions being discussed here have a
particularly narrow description of what being a Nigerian or being of Nigerian descent would entail,
because they seek to prescribe the application of law to groups of people based on their socio-
cultural history and experiences. Therefore, being Nigerian and being a Nigerian citizen in this
sense may not necessarily mean the same thing.

The classification under the Lagos and Northern Nigerian laws are not defined in those laws, so the
definition of native has been sought in extraneous legislation, but one that is most suitable for the
purpose. The definition of “native” was provided for under Section 3 of the old Interpretation Act,15
thus

‘native’ includes a native of Nigeria and a native foreigner; ‘native of Nigeria’ means any person
whose parents were members of any tribe or tribes indigenous to Nigeria and the descendants
of such persons; and includes any person one of whose parents was a member of such tribe;

10
Section 20, High Court Law of the Eastern Region, Cap 61, Eastern Nigeria Laws, 1963
11
Section 12(2), High Court Law of the Western Region, Cap 44, Western Region of Nigeria Laws, 1959
12
Section 26(2), High Court Law of Lagos State, Cap 52, Laws of Lagos State, 1973, and Section 34(2), High Court
Law of the Northern Nigeria, Cap 49, Northern Nigeria Laws, 1963
13
See Osita Nnamani Ogbu (2007), Modern Nigerian Legal System (CIDJAP; Enugu) 308
14
See Sections 25-27 1999 Constitution of the Federal Republic of Nigeria
15
Cap 89, Federal and Lagos Laws, 1958

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Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021
‘native foreigner’ means any person (not being a native of Nigeria) whose parents were
members of a tribe or tribes indigenous to some part of Africa and the descendants of such
persons; and included any person one of whose parents was a member of such tribe

Quite surprisingly, the subsequent Interpretation Act of 1964 which replaced the one in the 1958
Laws does not contain the definition of “native”, neither does the Lagos State Interpretation Law16.
However, the Interpretation Laws of the other regions provide a definition of “native” identical to
the one above. Authors differ in their analysis of this situation. Obilade, for instance, believe that it
is an oversight of the legal draftsman, and that the definition in the old law should continue to
apply, especially since it is available in the interpretation laws available in parts of the country.17
Niki tobi, on the other hand, is of the view that, the repealed provision of a law cannot be applied,
since such law is dead, although case law on the matter can be considered.18 The latter position
seems more acceptable, as it would cause less confusion in the application of legal rules.

As noted earlier, it is important to understand the classification of parties in order to understand

Application of Customary Law and English Law in Nigerian Courts

The provisions of the different High Court Laws which provide the classification of parties also
provide the application of the law those parties,19 since the purpose of the classification is to
determine applicability of customary or English Law. The different Laws contain similar provisions,
so the provision of the High Court Law of Lagos State will be provided here, thus

(1) The High Court shall observe and enforce the observance of every customary law
which is applicable and 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, and
nothing in this law shall deprive any person of the benefit of customary law.
(2) Customary law shall be deemed applicable in causes and matters where the parties
thereto are natives and also in causes and matters between natives and non-natives, where it
may appear to the court that substantial injustice would be done to either party by a strict
adherence to any rules of law which would otherwise be applicable.
(3) No party shall be entitled to claim the benefit of any customary law, if it shall appear
either from express contract or from the nature of the transactions out of which any suit or
question may have arisen, that such party agreed that his obligations in connection with such
transactions should be exclusively regulated otherwise than by customary law or that such
transactions are unknown to customary law.

It is clear from the above provision that there are certain conditions that would determine the
applicable law in a given case. One of these conditions is the validity condition (for customary law),
the other is the party classification condition, and the third concerns conditions relating to the
circumstances surrounding the case.

16
Cap 57, Laws of Lagos State, 1973
17
Obilade (1979), The Nigerian Legal System (Spectrum Law Publishing; Ibadan) 149
18
Niki Tobi (1996), Sources of Nigerian Law (MIJ Publishers; Lagos) 155
19
Supra, footnotes 1-3

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Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021
Validity Conditions: by this, we mean the conditions under which customary law would be
considered valid to be applied in a given case. Even after customary law has been proven before the
courts, there are still other tests that would be applied by the courts to ensure that the custom in
question is a valid custom. The first of this is the repugnancy test. Customary law will not be applied
by the courts where it is shown that such a custom is repugnant to natural justice, equity, and good
conscience. This rule has been applied in Edet v. Essien, where the court held that the custom
claimed by the defendant had not been proven, but that even if it were, it would not be upheld by
the court because it was repugnant to natural justice, equity and good conscience. In Danmole v.
Dawodu, the court held that the Yoruba custom of idi-igi was not contrary to natural justice, equity,
and good conscience, and as it was a widely known and accepted custom, it was held to be the
applicable custom in the case.

Another validity test for native law and custom is with regard to General Law. The second part of
Section 26(1) quoted above, and the relevant provisions in the other regional laws, provides that
customary law, to be applicable, was not to be incompatible, for the time being, with any law in
force (Report: Adesubokan v. Yinusa (1971) NNLR 77). Some have seen this as a blanket provision
stating that General law, or legislations, would supersede customary law, in the event of a conflict
between the two. However, the concluding part of that sub-section seems to introduce a proviso,
stating that no one would be deprived of a benefit under customary law. It has been argued that this
proviso qualifies the other parts of the subsection, and that where a particular rule of customary
law is to confer a benefit on a party, it would apply, irrespective of having failed the repugnancy
test, or being incompatible with a provision of General Law.

In addition to these conditions that determine the validity of customary law, Section 14(3) of the
Evidence Act also provides a condition for the enforement of customary law, to the effect that, such
custom must not be contrary to public policy. The test was used to void a customary arrangement
in Meribe v. Egbu20 (Report)

Classification of Parties Condition: This is a very important subject because, in a diverse legal
system like Nigeria, the parties to a suit, under certain circumstances, determine the source of law
applicable to their case. The reason for this has been explained above.

Where the parties to a case are Nigerians, persons of Nigerian descent, or natives, customary law
will be applied in the matter between them. Where the parties are mixed, i.e., Nigerian, person of
Nigerian descent, or native, on the one hand, and non-Nigerian, person not of Nigerian descent, or
non-native, on the other hand, then General Law would apply (Report: Koney v. Union Trading Co.
(1934) 2 WACA 188), unless it appears to the court that substantial injustice would occur if
customary law were not applied, in which case, customary law would apply. Non-Nigerians or non-
natives may not impliedly adopt a particular custom, as they do not have the capacity to be
ordinarily bound by those customs, but the situation might be reversed where they expressly
change their status under the law (Report: Savage v. McFoy (1909) Ren 54).

It should be noted that, based on the definitions considered above, when discussing the
classification of parties, in Lagos and the former Northern region, non-Nigerian Africans would be
subject to rules of customary law in transactions among themselves or between them and
Nigerians, as would transactions between Nigerians in other parts of the country.

20
(1973) 3 SC 23

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 Adeola Adeyemi-Adedeji
Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021
It would appear that in most cases where the parties are of mixed classification, General Law would
ordinarily apply, and the discretion lies with the court to decide whether customary law should be
applied between the parties. This condition, which is based on the provision of subsection two of
the relevant laws is tied mainly to the identity or classification of the parties, but it may be
superseded by the circumstances of the case.

Conditions Based on the Circumstances of the Case: By virtue of subsection 3 of the relevant laws,
regardless of the classification of the parties to a case, there are certain circumstances that would
determine the applicable law in that case, and these include circumstances where

a) There is an express contract by a person entitled to a benefit under customary law, that the
transaction in question be governed by any other law, in which case such a person will not be able
to claim such benefit under customary law
b) It is clear, from the nature of the transaction, that some other law, other than customary law, was
intended to be applied between the parties
c) The transaction in question is unknown to customary law, in which case some other law would
apply (Report: Salau v. Aderibigbe (1963) WNLR 80)

Circumstances (a) and (b) are sometimes read together to mean that the agreement may be express
(a) or implied (b). (Report the following cases: Okolie v. Ibo (1958) NRNLR 89; Nelson v. Nelson
(1951) 13 WACA 248; Griffin v. Talabi (1948) 12 WACA 371; Green v. Owo (1936) 13 NLR 43)

This condition is somewhat related to the proviso in the first condition in subsection one having to
do with validity. Although the proviso states that the law will not preclude a person entitled to a
benefit under customary law from claiming such benefit, this subsection provides for the conditions
under which such a person will not be entitled to claim such a benefit. The proviso is, therefore, not
an absolute one. An important question that arises, under the circumstances, would be that
regarding hierarchy, which will be discussed below.

Having considered cases involving conflict between customary and non-customary law, it is
important to also consider what would happen where the parties find themselves subject to more
than one custom in a given case. This would not be an unusual occurrence in a country like Nigeria
with more than 200 ethnic groups. Individuals are usually governed by their personal law, and the
general idea is that Nigerians, persons of Nigerian descent, and natives, usually have customary law
as their personal law. Hence, where two parties governed by two different customs engage in a
transaction, the courts would have to determine which customary law would apply. As a general
rule, the Laws of the various states provide for the application of the law of the jurisdiction of the
court, or the law binding the parties in their transaction.21 Nevertheless, there are situations where,
based on the nature of the transaction, the court will determine the applicable of several customary
law rules. The different classifications of transactions can be grouped as follows:

a) Succession (Report: Tapa v. Kuka (1945) 18 NLR 5; Ghamson v. Wobill (1947) 12 WACA; Olowu v.
Olowu (1985)3 NWLR (pt 13) 372)

21
Section 43(1) Magistrate Courts Law, Cap 82, Laws of Eastern Nigeria (as amended); Section 19 and 20,
Customary courts Law, Cap 31, Laws of the Western Region of Nigeria, 1959; Sections 19 and 20, Customary Courts
Law, Cap 33, Laws of Lagos State, 1973; Sections 20 and 21, Area Courts Laws of the different Northern States (See
Obilade, op. Cit., p. 162)

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Edefe Ojomo
Wahab Shittu
Yinka Owoeye February 2021
b) Land Matters (lex situs)22
c) Other Civil Matters

Hierarchy of Sources – Customary Law and General Law

It seems clear from the provisions of subsection one of the relevant laws discussed above on
internal conflict of laws, that there are significant limitations to the application of customary law,
particularly where such limitations affect the validity of the custom in question. Apart from the
repugnancy test, the customary law in question is not expected to be incompatible with any other
law for the time being in force, nor is it to be contrary to public policy. This would, at first glance,
seem to support the view that all other laws supersede customary law, since customary law will
become invalid where it is not compatible with any other law. However, some observers have
raised the claim that the proviso that follows the relevant provision establishes the supremacy of
customary law, where a person is entitled to a benefit under such customary law. Hence, in this
view, where a party is entitled to a benefit under customary law, such customary law would be
applied by the courts regardless of whether it had failed the repugnancy test, or whether it is
incompatible with any General Law for the time being in force.23 This position is somewhat absurd.
While it is not exactly clear what the exact intention of the legal draftsman was in inserting the
provision, it cannot be read to carry such absoluteness. Obilade is of the opinion that

The effect of the provision is that no provision of the enactment is to be construed as depriving
any person of the benefit of customary law where such person would normally have been
entitled to the benefit of customary law, subject to subsection (3) of the relevant section of each
High Court enactment...24

Based on this view, which is the more acceptable one, where customary law is incompatible with
any law for the time being in force, such customary law will not be applied by the courts, and this
means that in a conflict between customary law and any other primary source of law, the latter will
prevail, since the validity of customary law is based partly on its compatibility with General Law.

22
There is no provision on this matter in the Eastern States.
23
The opinion of Bello J. in Adesubokan v. Yinusa, supra, p. 104
24
Obilade, op cit, p. 148