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Follow @okeyfredeniamazon.com/Okey-EniCUSTOMARY LAW AND CHILD MARRIAGE IN NIGERIA - PART 1
Customary law is the body of rules recognized by a particular
community as binding in their relationship with one another.
According to T.O. Elias, customary law is;
“The body of rules which are recognized as obligatory by it’s
members…. This recognition must be in accordance with the
principles of their social imperative, because operating in every
community is a dynamic of social conduct, an accepted norm of
behavior, which the vast majority of its members regard as
absolutely necessary for the common weal”.
Customary law have several characteristics which distinguishes
it from other laws and also makes for it’s acceptance as a genuine
law.
Firstly, it is largely unwritten; commenting on this Anthony
Allot has this to say;
“First, the law is unwritten. There is no written memory of the
edicts and decisions of past legislators and judges, they exist only in
the minds of those who administer, and those who are subject to
the customary law. There is no pondering over legal principles, no
juristic analysis, no criticism or refurbishing of old precedents, all of
which depend on written texts which the justice may scrutinize at
leisure. Hence, no jurisprudence (in the English or continental
sense), no creative conscious evolution of legal principles and
doctrines, no written process in the courts. Next the law is
customary. That is the rules of law trace back to the habits,
customs and practice of the people, which engender and support
the norms expressly formulated from time to time for the decision
of disputes”.
However, there are provisions in the statutes whereby
customary law rules could be reduced into a written form. In S. 30
of the Native Authority Ordinance Cap 140 of 1948 which has now
been repealed, made such provision. Also, S. 78 of the Western
Nigeria Local Government Law (Cap. 68) and S.48 of Northern
Nigeria Native Authority Law (Cap.77), provided that a local
authority has power, or when so instructed by the governor, a duty
to make a declaration, either of what it considers the customary
rule on a particular topic within it’s area to be, or of any
modification which it regards as desirable. The declaration will then
be submitted to the governor, who first of all considers whether it
is accurate, and whether any modifications are desirable. He will
then consider whether the declaration is repugnant to natural
justice, equity and good conscience, or incompatible with any
statutory enactment in force. If he is satisfied on all these points,
he will then order that such declaration shall be the customary law
of the area concerned. Also, S.83 of the Western Nigeria Local
Government Law (Cap 68) and S. 90 of the Eastern Nigeria Local
Government Law (Cap 79) provided that the minister of local
government may frame model bye‐laws upon among other things,
subjects generally regulated by customary law. Then the local
government council may by resolution adopt any bye‐laws so
made, and it will form part of the law in the council area.
The second characteristic of customary law is that it must
be accepted by the members of the community whose affairs it
regulates. This is what prompted Bairamain F.J. to declare in the
case of Owonyin vs Omotosho 27
“Native law and custom is , I think, a mirror of accepted
usage”
Thirdly, for a native law and custom to be valid and
enforceable, it must be the existing customary law in force at that
given time and not that of bygone days. This was affirmed by Speed
Ag. C.J. in Lewis vs Bankole .28
Fourthly, customary law is flexible, it is what grows from “a
long and generally observed course of conduct”. 29 Customary law
is never static, it grows from age to age. Speaking on the flexibility
of customary law, Lord Atkin in Eshubayi Eleko vs Government of
Nigeria,30 has this to say.
“Their lordships entertain no doubt that the more barbarous
customs of earlier days may under the influences of civilization
become milder without losing their essential character as custom.
It would however appear to be necessary to show that in their
milder form they are still recognized in the native community as
custom, so as in the form to regulate the relations of the native
community inter se”.
This was also the conclusion of Osborne C.J. in Lewis vs
Bankole supra, where he said, 31
“One of the most striking features of West African native
custom…. Is it’s flexibility, it appears to have been always subject to
motives of expediency, and it shows unquestionable adaptability to
altered circumstances without entirely losing it’s character”.
Having dwelled so much on the characteristics of customary
law, let us now examine what constitutes a valid custom. Noticed
must be taken here of the complexity of customary law. It varies
from tribe to tribe.
Commenting on this, Salacuse and Kasunmu, has this to say
when they wrote, 32
“Unlike the English family law applied in Nigeria, customary
law does not consist of a single uniform set of legal principles.
Rather it is composed of hundreds of sets of laws each of which
was developed by and applied to a particular ethnic or tribal group.
The Yoruba, the Ibo, and the Tiv, each have their own systems of
family law and each may differ from the others in many significant
respects. Indeed, the customary law of a particular group may itself
vary from area to area and even from village to village. It is
therefore more precise to speak of the Ibo law of Onitsha or of
Aro‐Chukwu than simply of Ibo law. Nevertheless, as will be seen in
the chapters which follow, the various systems of customary law
prevailing in Nigeria do have many principles and concepts in
common”.
Writing in the same vein, Dr. Akinola Aguda also
commented on the complexity of the Nigerian customary law, he
stated, 33
“ There is no doubt that the rules governing customary
marriage vary from place to place, and if one may say so, from time
to time, like all other rules of customary law anywhere, but one can
hardly subscribe to the suggestion that in spite of that we cannot
find basic requirements of a valid customary marriage. To the
extent, we may say that what we have is a customary ‘law’ of
marriage which varies from place to place according to the customs
of the people”.
Salascus and Kasunmu, considering what constitutes a valid
customary marriage wrote, 34
“For the lawyer or judge, the issue of whether or not a
person is or was validly married under customary law presents
special problem not ordinarily found in similar causes involving
statutory marriages. The great problem is to learn just what the
law is … to determine just what acts and ceremonies must be
performed by the parties before the customary law will consider
them married. There are hundreds of different systems of
customary law in Nigeria, and each seems to have it’s own
particular requirements for marriage. Once the judge or lawyer has
learned from witnesses the whole spectrum of acts to be
performed, he must then decide which of these acts have legal
significance and go to the essential validity of the marriage, and
which one of purely social significance and will not affect the
validity of marriage. Often these acts are performed over a long
period – sometimes years. So it is often necessary to learn at what
point in time the parties became married. And since customary
marriages are not usually recorded, the lawyer or judge is faced
with the additional problem (much less often found in cases
involving statutory marriages) of deciding whether in fact the
parties to the alleged marriage actually performed the acts
necessary to make them husband and wife.”
BY
OKEY ENI
COPYRIGHT (C) 2012 OKEY ENI
