CUSTOMARY LAW AS A SOURCE OF NIGERIAN LAW - DEFINITION. Nonso Robert Attoh Faculty of Law, University of Nigeria Enugu State, Nigeria

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1 CUSTOMARY LAW AS A SOURCE OF NIGERIAN LAW - DEFINITION Nonso Robert Attoh Faculty of Law, University of Nigeria Enugu State, Nigeria

2 STATUTORY DEFINITIONS CUSTOMARY COURTS LAW EASTERN REGION NO. 21 of 1956, S.2 defines Customary law to mean a rule or body of rules regulating rights and imposing correlative duties, being a rule or body of rules which obtains and is fortified by established usage and which is appropriate and applicable to any particular cause, matter, dispute, issue or question. Evidence Act 2011 section 258(1) defines custom as a rule which, in a particular district, has from long usage, obtained the force of the law

3 CASE-LAW DEFINITION Oyewumi v. Ogunesan (1990) 3 NWLR PT. 137 P.182 at 207, the Supreme Court per Obaseki Jsc defined customary law as: The organic and living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static, is regulatory 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. I would say that customary law goes further to import justice to the lives of those subject to it (underlining mine for emphasis) 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.

4 CASE LAW DEFINITIONS In Owoniyi v. Omotosho (1961) 1 All NLR 304, Bairaman F.J defined it as mirror of accepted usage, among a given people In Aku v. Nenku (1991) 8 NWLR pt 209 p.280 at 292 the Court of Appeal per Ndoma-Egba JCA defined it thus The unrecorded tradition and history of the people, practiced from the dim past and which has grown with the growth of the people to stability and eventually becomes 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 subject matter to which it relates (underlining mine for emphasis)

5 ACADEMIC DEFINITIONS Customs accepted by members of a community as binding among them Professor Obilade Body of customs accepted by members of a community as binding upon them Taslim Elias The customs, rules and traditions which govern the relationship of members of a community Niki Tobi JSC Law which is generated by custom - a body of customs and traditions, of a people that regulate various kinds of relationship between members of a community Professor Badaiki.

6 ACADEMIC DEFINITIONS (contd) Custom is a practice that by its common adoption and long, unvarying habit has come to have the force of law while customary law is law consisting of customs that are accepted as legal requirements or obligatory rules of conduct. They are practices that are so vital and intrinsic a part of social and economic system that they are treated as if they were laws Blacks Law Dictionary 10 th edition ed. By Bryan Garner Customary law may be defined as those rules of human action established by usage and regarded as legally binding to those to whom the rules are applicable, which are adopted by the courts and applied as sources of law, because they are generally followed by the political society as a whole, or by some part of it G.W Keeton The Elementary Principles of Jurisprudence

7 COMMON ELEMENTS IN THE DEFINITIONS The common elements in all the definitions are; the source of customary law which is custom, its regulatory role, its obligatoriness because of long usage and its unrecorded or unwritten nature. You can then combine all these features to arrive at a definition like Unwritten or unpromulgated law that evolves or is generated from the customs, traditions and values of a people which reflects their way of life and regulates their interactions and which by long usage has obtained an obligatory force of law. (composite definition for 2016 class) you can coin your own definition that incorporates the essential characteristics of custom we have identified. It is important that you understand the definitions as the definitions will help you in identifying the essential features or characteristics of customary law

8 INTERNATIONAL LAW AND CUSTOM Custom is recognized as one of the sources of international law under article 38 of the Statute of the International Court of Justice. As a follow up on your first semester classification of law into international law and municipal law, you are reminded that as a source of international law to be applied by the court, a custom must be evidence of a general practice accepted as law. So without going into further details at this stage be aware that for a practice to constitute customary international law, there must be evidence of state practice and there must also be the subjective element that the states involved in the practice regard such practice as obligatory. The subjective element is referred to as opinio juris sive necessitatis

9 PRACTICE QUESTION In your own words, attempt a definition of customary law that properly incorporates the features of customary law? Where do you get the substance of customary law from? Can a practice which a people are free either to perform or not to perform and which they have no obligation to carry out be regarded as customary law? Among the Ori-ekpe people of x state in Nigeria, there is a liberty amongst the people to eat snake meat if you so wish, but among the Ori-ojori people of the same x state it is a taboo punishable with sanctions to eat or even touch snake meat because their history ties the snake to their pantheon of gods and goddesses. Which of these two communities has a custom in relation to snake meat?