1.1 Background of the Study
Before the arrival of colonial rule in Africa and in Nigeria precisely, the regulation of social relations was carried out through indigenous legal systems. These institutions were for the most part, customary in origin and type. With the advent of colonialism a fundamental and far reaching impact was wrought on the indigenous social and legal arrangements, the result of which are still with us today.
Customary law is the starting point of Nigerian legal history. Before the emergence of colonial rule, customary law held sway and enjoyed monolithic application in the geographical territory currently known as Nigeria, composed of erstwhile politically and legally independent nationalities. However, this exclusive dispensation of customary law is not synonymous with substantive similarity. The different region of Nigeria or its various nationalities were and still are, under different customary law systems, which may overlap in certain specific matters. For example, the Akwa Ibom customary law applies to the people in eastern Nigeria, the Yoruba customary law to the Yoruba’s in western Nigeria and the Islamic or Muslim law is regarded as customary law by the Hausa/Fulani in northern Nigeria. Even within a particular nationality or region, like the Akwa Ibom in eastern Nigeria, variations are noticeable in the customary law of its various communities or groups.
Customary law by its nature, is geographical and tribally sensitive and in the case of Islamic law, religiously sensitive. These sensitivity in addition to the colonizers sense of legal superiority and supreme contempt for the savages indigenous legal order, militated against the application of customary law British colonialist, English law was introduced in Nigeria, beginning with Lagos in 1863 and extending to the rest of the country in 1900. English law initially allied to British citizens and other foreign nationals subject to British protection, while customary law continued to apply to the native of Nigeria. Generally, English law became applicable to the natives of Nigeria along side with customary law, by the means of legal mechanism and statutes.
However, John Austin, in lectures on jurisprudence or philosophy of positive law,describes customary law thus: Customary law, one must differentiate between a custom and customary law. A custom is a rule of conduct when such rule of conduct attains a binding or obligatory character it become a customary law. It is the assent of the community that gives a rule of conduct it obligatory nature and entails that it is supported by a sanction and enforceable.
Therefore, customary law refers to custom accepted by a particular community as binding, the breach of which is supported by customary sanction. This definition covers the distinction between custom and customary law based on the availability of sanction. The Nigerian customary law had always been in an evolving state. It was never static. It could have continued to evolve and attain higher levels of refinement without the dislocating intervention of the customary law.
1.2 Statement of the Problem
Customary law in Nigeria was challenged by the introduction of colonial law and civilization and adequately responded by the exercise of its unwritten and flexible characteristics. Most cultural nations relegated have customary law to the background as a result of the customary law. The customary law which is seen as a tool of civilization on the other hand does not prove conceptual confidence for the nullification of some rule of customary law. (Section 42 (1) 2) of the 1999 constitution, Articles 2 & 5 of the CEDAW, Section 18 (1) of the High Court Law of Anambra State 1987.
It should not be forgotten that the majority of Nigeria’s one hundred million people are still regulated by the rule of customary law. It is a notorious fact that customary law arbitration or indigenous dispute resolution mechanism is still the preferred means of dispute resolution in the rural area. The activation of the machinery of justice of a modern state, by one member of a family against another, is still seen as an invitation to enmity and a breach of family equilibrium.
1.3. Objectives of the Study
This research is aimed at accomplishing the underlisted objectives
To assess the application of customary law in Nigeria courts
To explain the concept of customary law.
To identify the various validity tests of customary law
To determine the judicial nature of customary law in customary courts
To appraise the essence of customary law in Nigeria
To identify the problems of customary law
To identify customary law as an issue of fact
1.4 Scope of the Study
Firstly, the study is restricted to customary law as a source of law in Nigeria. Secondly, there are many legal issues and topics relating to customary law which include among others, the constitutionality of customary law, customary law and equity, modernity of customary law, etc. Some of the areas of law may be relevant to third parties living and working beyond the community, but much of it may not.