A WRITE UP
ON
“THE CUSTOMARY COURT IN NIGERIA”
BY
ADEJUMO SAHEED (ARC/04/3163)
SEIDU NAJEEM B (ARC/04/3228)
SUBMITTED TO
THE DEPARTMENT OF ARCHITECTURE, FEDERAL UNIVERSITY OF TECHNOLOGY
AKURE
AS PART OF THE CONTINOUS ASSESSMENT FOR
BUILDING CONTRACT (ARC 510)
LECTURER IN CHARGE :PROF.OGUNSOTE
NOVEMBER 2009
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TABLE OF CONTENTS
1.0 INTRODUCTION
1.1
Legal System of Nigeria
1.1.1 Federal Courts
1.1.2 State Courts
1.1.3 Election Tribunals
1.2
2.0
Centre of focus of this write-up
DEFINITIONS OF CUSTOMARY LAW
2.1
Nature and Form of Customary Law
2.2
Characteristics of Customary Law
2.3
Test of Validity of Customary Law
2.3.1 Natural Justice
2.3.2 Principle of Equity and Good conscience
2.3.3 Incompatibility with Written Law
2.3.4 Public Policy
3.0
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3.1
Constitutional Backings for Customary Court of Appeal of a State
3.1.1 Establishment of Customary Court Of Appeal
3.1.2 Appointment of President And Judges of The Customary
Court of Appeal of A State
3.1.3 Jurisdiction
3.1.4 Constitution
3.1.5 Practice and procedure
3.2
Laws Handled by Customary Court in Nigeria
4.0
CONCLUSION
REFERENCES
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1.0 INTRODUCTION
Nigeria, officially the Federal Republic of Nigeria, is a federal constitutional
republic comprising thirty-six states and one Federal Capital Territory. While the
Legislature is responsible for making laws and the Executive is charged with the
implementation of such law, the Judiciary is responsible for the interpretation of the
law in accordance with the provisions of the Constitution.
In line with the doctrine of separation of powers, which is a cardinal feature
of a democratic system, the Nigerian Constitution guarantees the independence of
the Judiciary. The Constitution provides for Federal and State Courts, as well as
Election Tribunals. At the apex of the Judiciary is the Supreme Court.
1.1
LEGAL SYSTEM OF NIGERIA
The complex court system/heirachy of Nigeria today has its genesis from the
colonialists. The customary court systems, islamic law inclusive, were integrated
and fused into the court system that form part of the same judicial train-rail. The
Legal Sysytem of the country entails the following:
FEDERAL COURTS:
Supreme Court
The Court of Appeal
The Federal High Court
The High Court of the Federal Capital Territory, Abuja
The Sharia Court of Appeal of the Federal Capita! Territory, Abuja.
The Customary Court of Appeal of the Federal Capital Territory.
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STATE COURTS:
The High Court
The Sharia Court of Appeal
ELECTION TRIBUNALS:
The National Assembly Election Tribunals
The Governorship and Legislative Houses Election Tribunals
In addition to the Courts and Tribunals established by the Constitution, there
are other court and tribunals created by Federal or State laws. These include:
Magistrate Courts, Area Courts, Sharia Courts and Customary Courts. The Chief
Justice of Nigeria, the President of the Court of Appeal, the Chief Judge of the Federal
High Court and the Chief Judge of the High Court of the
Federal Territory, Abuja is all appointed by the President on the advice of the
National Judicial Council subject to the consent of the Senate. The President also
appoints the Grand Kadi of the Sharia Court of Appeal of the Federal Capital
Territory, Abuja and the President of the Customary Court of Appeal of the Federal
Capital Territory, Abuja in the same manner as fraise of the other Federal Courts. All
other judicial appointments to the Federal Courts are made by the President on the
advice of the National Judicial Council.
1.2
CENTRE OF FOCUS OF THIS WRITE-UP
In this paper, we intend to elaborate on the customary court system in
Nigeria, nature and form of Customary Law, test of validity of Customary Law,
constitutional backings for Customary Court of Appeal of a State, some laws that can
be handled by the Nigerian Customary Courts and others.
2.0
DEFINITIONS OF CUSTOMARY LAW
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Customary law in the Nigerian context means the unwritten laws of Nigeria,
as opposed to other laws. It may also be defined as ancient rules of law binding on a
particular community and which often change with times and the rapid
development of social and economic conditions. In other words, it is a blanket
description covering the various customs of tribal laws. Jurist like Salmon J defined
Custom as the embodiment of those principles which have commended themselves
to the natural conscience as principles of justice and public utility. Therefore custom
is an expression and realisationof the principles of rigth and justice.
Customary law has been statutorily defined, for instance, CUSTOMARY
COURTS LAW EASTERN REGION NO. 21 of 1956, S.2 defines Customary law to mean
a rule or body of rules regulation rights and imposing correlative duties which has
obtained and is fortified by established native usage and which is appropriate and
applicable to any particular cause, matter, dispute, issue or question.
In SALAU VS ADERIBIGBE 1963 MNLR 80 Charles. J held that customary law
means those rules of conduct which the persons living in a particular locality have
come to recognise as governing them in their relationship with one another and
between themselves and things, but the things to which customary law is related
were things which were closely connected with customary way of life and which
existed or were usually kept in the locality in which their owners or possessors
lived.
The importance of customary law has been given by Lord Wright in Laoye Vs.
Oyetunde 1994 AC. 170 where His Lordshio observed that “the policy of the British
government in these and in other respect is to usecustomary law for the purpose of
administration of justice, native law and custom, in so far as possible and in so far as
they have not been varied or suspended by statues or ordinances affecting Nigeria”.
2.1
NATURE AND FORM OF CUSTOMARY LAW
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This is the tradition unwritten law of the people handled down from
generation to generation. It is generally a question of fact to be proved by evidence,
but where a customary law has been repeatedly applied by the courts, the
customary court may take judicial notice of it and apply it without requiring proof
evidence. Where members of a customary court are familiar with the custom of a
community, they can apply it without requiring evidence.
2.2
Characteristics of Customary Law
Customary law has some salient feature among which has been succinctly
expressed by Bairamian in OWONYIN VS OMOTOSHO 1961 1 ALL NLR 304 at 309
to be “a mirror of accepted usage”. This statement implies that a particular
customary law must be in existence, of long usage, acceptable and flexible. In
ESHUGBAYI ELEKO VS GOVERNMENT OF NIGERIA 1931 AC.662 at 673, Lord Atkin
said “their Lordships entertain no doubt that the barbabous customs of earlier days
may under the influences of civilisation become milder without losing their essential
character as a custom.
It would however, appear to be necessary to show that in their milder form
they are still recognised in the native community as custom, so as in the form to
regulate the relations of the native community as custom, so as in the form to
regulate the relation of the native community. It is the assent of the native
community that gives a custom its validity and therefore barbarous or mild, it must
be shown to be recognisedby the community whose conduct it is supposed to
regulate”
2.3
TEST OF VALIDITY OF CUSTOMARY LAW
The customary law mus t be one which is not repugnant to natural justice,
equity and good conscience or incompatible either directly or indirectly with any
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written law in force, and which is not contrary to public policy. These tests may be
illustrated as follows:
2.3.1 Natural Justice
It is a fundamental principle of natural justice that a man may not be a judge
in his own cause and that a man must be given an opportunity of being heard on any
claim or accusation brought against him or which affects him. This last rule is stated
in Latin as audi alteran parten rule. If a rule of customary law offends against these
rules of natural justice it will not be enforceable (see Kokro v. Esua 14 WACA 313
where the court set aside a decision of the lower court because the appellant was
not given an opportunity of being heard).
2.3.2 Principle of Equity and Good conscience
Any rule of customary law which in the view of reasonable people can no
longer be justified by civilised standard or which will be revolting to the conscience
of such people and society cannot be enforced. For example any rule which implies a
servile status though not amounting to slavery will be repugnant; a customary law
that provides that a child may be awarded to another person against the natural
father is repugnant.
2.3.3 Incompatibility with Written Law
A court will not administer a customary law which is incompatible either
directly or by necessary implication with a written law (see section 20 (a) of the
Customary Court Law).
A written law here maens an enactment whether in form or Act, a Law, a Rule,
regulation or order. It has been said that a rule of customary law on a subject matter
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is incompatible with a written law if the written law is clearly intended to govern
that subject matter to the exclusion of customary law. A customary law will be
directlty incompatible with a statute whose object is to supplant or modify the
customary law rule, or to abolish some customary law practice or status. Some
enactment’s contain provisions exempting matters governed by customary law
practice or status.
2.3.4 Public Policy
A custom which is contrary to public policy will not be applied or enforced.
Although it is not expressly provided for in the customary court law (unlike section
14(3) of the Evidence Act), a custom that acts at the root of public safety, e.g., will
not be allowed even in customary court.
3.0
THE CUSTOMARY COURT SYSTEM IN NIGERIA
As earlier mentioned the Nigerian Customary Court is operated both at the
Federal and State levels. The Customary Court of Appeal of the Federal Capital
Territory, Abuja, and the Customary Court of Appeal of a State have appellate and
supervisory jurisdiction in civil proceedings involving questions of customary taw in
their respective jurisdictions.
3.1
CONSTITUTIONAL BACKINGS FOR CUSTOMARY COURT OF APPEAL OF A
STATE
(Extracted from Sections 230 - 236 of the Constitution of the Federal Republic of
Nigeria 1999)
3.1.1 Establishment of Customary Court Of Appeal
(1) There shall be for any State that requires it a Customary Court of Appeal for that
State.
(2) The Customary Court of Appeal of a State shall consist of –
(a) A President of the Customary Court of Appeal of the State; and
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(b) Such number of Judges of the Customary Court of Appeal as may be
prescribed by the House of Assembly of the State.
3.1.2 Appointment of President And Judges of The Customary Court of
Appeal of A State
(1) The appointment of a person to the office of President of a Customary Court
of Appeal shall be made by the Governor of the State on the recommendation
of the National Judicial Council, subject to confirmation of such appointment
by the House of Assembly of the State.
(2) The appointment of a person to the office of a Judge of a Customary Court of
Appeal shall be made by the Governor of the State on the recommendation of
the National Judicial Council.
(3) Apart from such other qualification as may be prescribed by a law of the
House of Assembly of the State, a person shall not be qualified to hold office of
a President or of a Judge of the Customary Court of Appeal of a State unless –
(a) He is a legal practitioner in Nigeria and he has been so qualified for a period
of not less than ten years and in the opinion of the National Judicial Council he
has considerable knowledge and experience in the practice of Customary law;
or
(b) In the opinion of the National Judicial Council he has considerable knowledge
of and experience in the practice of customary law.
(4) If the office of President of the Customary Court of Appeal of a State is vacant
or if the person holding the office is for any reason unable to perform the
functions of the office, then until a person has been appointed to and has
assumed the functions of that office, or until the person holding the office has
resumed the functions of that office, or until the person holding the office has
resumed those functions, the Governor of the State shall appoint the most
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senior Judge of the Customary Court of Appeal of the State to perform those
functions.
(5) Except on the recommendation of the National Judicial Council, an
appointment pursuant to subsection (4) of this section shall cease to have
effect after the expiration of three months from the date of such appointment,
and the Governor shall not re-appoint a person whose appointment has
lapsed.
3.1.3 Jurisdiction
(1) A Customary Court of Appeal of a State shall exercise appellate and
supervisory jurisdiction in civil proceedings involving questions of Customary
law.
(2) For the purpose of this section, a Customary Court of Appeal of a State shall
exercise such jurisdiction and decide such questions as may be prescribed by
the House of Assembly of the State for which it is established.
3.1.4 Constitution
For the purpose of exercising any jurisdiction conferred upon it by this
Constitution or any law, a Customary Court of Appeal of a State shall be duly
constituted if it consists of at least three Judges of that Court.
3.1.5 Practice and procedure
Subject to the provisions of any law made by the House of Assembly of
the State, the President of the Customary Court of Appeal of the State may
make rules for regulating the practice and procedure of the Customary Court
of Appeal of the State.
3.2
LAWS HANDLED BY CUSTOMARY COURT IN NIGERIA
The Nigeria Customary Court has the mandate the handle the following legal cases.
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 Land issues
 Marriage and Matrimonial issues
 Housing issues
 Contract issues
 Laws of tort
 Criminal offences
 Specific offences
For the purpose of this write- up, we will say little about Customary Law of Contract.
A simple contract under customary law is an agreement made either by word
of mouth or by conduct and it has been recognised among the Yoruba’s from time
immemorial. Like other customary law, it reflects accepted usage. The customary
law of contract- the agreement, the performance, the breaches and remedies are
generally based on some of the popular Yoruba maxims, adages and aphorisms, eg
(i)
“Native Law and Custom abhors greed and ill-gotten gains”.
(ii)
“It is aching to normal hearing to break a good promise and who breaks
a good promise must be prepared to go with the breach”.
(iii)
“It is contrary to good conscience for any one to retain what has been
paid to him and to give nothing in return”.
The most common contractual transactions under customary law today are sale of
land, sale of goods, pledge of land, customary tenancies, contract of personal service,
pledge of chattels, contracts of adjustment, loan contracts co-operative contract,
building contract etc.
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4.0
CONCLUSION
It is worthy of note that a law of statute can/may provide in its contents, power in
favour of a court to grant one form of injuction or the other. A court rules can
equally grant it power to grant one form of injuction or the other. The write-up so
far has revealed that if all the constitutions binding the operation of customary
courts in Nigeria are fully implemented the allieds and genaral mass will benefit a
lot and the country will be in a state of social tranquility and order. But to our
dismay, the leaders that formulated the rules and regulations are also the forerunners in breaking and bridging them. Infact, only the Laws of the Almighty can
never change nor get stale till the end of time.
REFERENCES
 J. OLA. OROJO 1980; Customary Courts Manual.
 Handout for Law Students, University if Ilorin,
 Juornal of Law Students’ Society, University of Ilorin, July 24, 1989 Edition
 Search Engines:
www.google.com
www.wikipedia.com
www.ask.com
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