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Judicial Recognition and Adoption of Customary Law in Nigeria Author(s): Derek Asiedu-Akrofi Source: The American Journal of Comparative Law, Vol. 37, No. 3 (Summer, 1989), pp. 571-593 Published by: American Society of Comparative Law Stable URL: http://www.jstor.org/stable/840092 . Accessed: 15/03/2011 13:42 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at . http://www.jstor.org/action/showPublisher?publisherCode=ascl. . Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission. JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. American Society of Comparative Law is collaborating with JSTOR to digitize, preserve and extend access to The American Journal of Comparative Law. http://www.jstor.org

Judicial Recognition of Customary Law in Nigeria

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Page 1: Judicial Recognition of Customary Law in Nigeria

Judicial Recognition and Adoption of Customary Law in NigeriaAuthor(s): Derek Asiedu-AkrofiSource: The American Journal of Comparative Law, Vol. 37, No. 3 (Summer, 1989), pp. 571-593Published by: American Society of Comparative LawStable URL: http://www.jstor.org/stable/840092 .Accessed: 15/03/2011 13:42

Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unlessyou have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and youmay use content in the JSTOR archive only for your personal, non-commercial use.

Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at .http://www.jstor.org/action/showPublisher?publisherCode=ascl. .

Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printedpage of such transmission.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact [email protected].

American Society of Comparative Law is collaborating with JSTOR to digitize, preserve and extend access toThe American Journal of Comparative Law.

http://www.jstor.org

Page 2: Judicial Recognition of Customary Law in Nigeria

DEREK ASIEDU-AKROFI

Judicial Recognition and Adoption of Customary Law in Nigeria

INTRODUCTION

Before the arrival of colonial rule in Africa, the regulation of so- cial 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-reach- ing impact was wrought on the indigenous social and legal arrange- ments, the results of which are with us today.

According to Allot:' The nature of the revolution varied somewhat with differ- ent colonial powers, but in general each power first intro- duced its own legal system or a variant of it as the fundamental and general law of its territories, and second permitted the regulated continuance of traditional African Law and judicial institutions except where they ran counter to the demands of colonial administration or were thought repugnant to 'civilized' ideas of justice and humanity. These two facets of colonial legal administration are important

in that they established the legal framework which was later to gov- ern the application of customary law in the various colonies.

The application of English law was heralded by the introduction of ordinances legitimating the application of English law. For exam- ple section 20 of the Supreme Court Ordinance of 1914 provides in- ter alia

the common Law, the doctrines of equity, and the statutes of general application which were in force in England as at January 1, 1900 shall be in force within the jurisdiction of the court. Similar enactments can be found in the statutes of other Eng-

lish colonies.2 The application of customary law was governed by special provisions in the various high court laws. In respect of Nige-

DEREK AsIEDu-AKROFI is a J.S.D. Candidate Columbia University School of Law, New York.

1. Antony N. Allot, The Future of African Law 220 (1965). 2. See e.g. sect. 14 of the Supreme Court Ordinance No. 4 of 1876 of Ghana (for-

merly the Gold Coast) enacted 31 March 1876.

571

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ria, they can be found in the laws of the various Regions of Nigeria (now States).3

A prototype of this enactment provides as follows the native Law and custom prevailing in the area of the ju- risdiction of the court or binding between the parties, so far as it is not repugnant to natural justice, equity and good conscience nor incompatible either directly or by necessary implication with any written law for the time being in force.4 The above provision is what is sometimes referred to as the "re-

pugnancy clause" or the "repugnancy doctrine." This will be later discussed in greater detail.

In this paper, I will attempt a discussion of the process of the judicial adoption and rejection of customary law, and its impact on the development of customary law in Nigeria.

In approaching this discussion, it will be necessary to consider some of the definitions of customary law, the tests applied in the adoption and rejection of customary law, and some of the problems associated with the process. The paper will conclude that the tests applied in the judicial recognition and adoption of customary law be abolished because they have out lived their usefulness.

NATURE OF CUSTOMARY LAW

When we talk about customary law, we are referring to a body of customs, practices and mores which are largely unwritten, and handed down from generation to generation by oral tradition. Due to this fact, proof of these customs is sometimes very difficult. Con- sequently, great reliance is placed on the testimonies of chiefs, el- ders and other people deemed to be conversant with the custom. Additionally, customary law has proved very flexible and adaptable to changing circumstances. This fact was given judicial recognition in the case of Lewis v. Bankole.5

In Nigeria, the term customary law is used to refer to indige-

3. E.g., The High Court Law, Eastern Region No. 29 of 1955, ? 22; Northern Re- gion High Court Law, N.R. No. 8 of 1955, ? 34; Western Region High Court Law, No. 3 of 1955, ? 17. This has been repealed and in its place a new section has been substi- tuted by W.R.H.C.(A.)L. No. 11 of 1959, ? 9.

4. Native Courts (Amendment) Law, 1960. N.R. No. 10 of 1960, ? 6(a). See also ? 20 of the Supreme Court Ordinance of 1914 reproduced as various high court Laws e.g. ? 26 High Court Laws of Lagos State 1973 Lagos Laws Chapter 52. Similar provi- sions may be found in the Laws establishing customary or native courts in many for- mer English colonies.

5. 1 N.L.R. 81 at 100-101 (1908), Osbourne, C. J. said "One of the most striking features of West African native law and custom . .. is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its character."

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nous/ethnic customary practices and Islamic law of the Maliki school.6 Unlike ethnic customary law, Islamic law is principally written. The latter governs the customary practices of the northern states which are predominantly Moslem, while the former refers to customary practices of the non-Moslem parts. The discussion will be limited to ethnic customary law, because there is a dearth of cases on the application of the tests to Islamic law.7 As will later be re- vealed, customary law is generally defined as the aggregate of ac- cepted customary practices, usages, mores and norms which are accepted as binding. Thus, the acceptance of the customary practices is a crucial factor in any inquiry of a custom's validity. This fact was given judicial recognition in the well known case of Eshugbayi Eleko v. Government of Nigeria.8 In that case, Lord Atkin said that

It is the assent of the native community that gives a custom its validity. This view of customary law as a system of norms emanating

from the common consciousness of traditional African society is no doubt the generally accepted understanding of customary law. The above view is widespread and popular among Nigerian legal schol- ars. For example, Jegede9 has observed that:

a community's acceptance of an alleged rule of customary law is a condition precedent to its validity and this can only be assessed by a careful look at the community's reaction to the application of the alleged rule of customary law. Although this popular perception of customary law does indeed

capture the essence of law in traditional Nigerian society, it is con- fusing to the extent that it presents customary law as a timeless cat- egory, the nature of which remains the same; and is causally connected with the various faces of historical evolution of African societies.'0

It will shortly be demonstrated, that whilst the norms that reg- ulated African societies in the earliest pre-colonial times reflected the above position, with the advent of colonialism, these norms no

6. Sect. 14 of the Sharia Court of Appeal Law (N.N. Laws 1963 Cap 122, em- powers the courts to apply Islamic law of the Maliki School as interpreted at the place of the trial.

7. This may be related to the fact that Islamic law is not treated as indigenous customary law, but rather as received customary law introduced to Nigeria by virtue of the Moslem conquest of Northern Nigeria. See also Obilade, Nigeria Legal Sys- tem 83 (1980). Notwithstanding the foregoing, it is not unlikely that the courts will subject any aspect of Islamic customary law to the tests, where they find those as- pects objectionable.

8. (1932) A.C. 622. 9. Jegede, Principles of Equity p. 6 (1981 Benin City Nigeria).

10. Akuffo, "The Relationship Between Customary Law and Equity In Nigeria" 2 (unpublished).

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longer derived their validity from the spontaneity and consensuality of traditional society, rather from what the courts declared them to be. This is because the courts relied on uneducated interpreters who were by no means versed in customary law. Consequently, the pos- sibility of misrepresenting and distorting the customary practices was very high. Thus, the courts did not get an accurate picture of what the customs really were and in applying the validity tests pro- ceeded on what they understood the uneducated interpreters to mean.

Let us now turn to a discussion of the means of proving the existence or non-existence of customary law.

PROOF OF CUSTOMARY LAW

There are two principal ways of establishing the existence of a custom before the Nigerian courts, namely by proof and by judicial notice. These methods of proof are embodied in statutory enact- ments with identically worded provisions in the various evidence en- actments of the various states." Section 14(1) of each of the enactments provides that

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 prov- ing a custom shall lie upon the person alleging its existence.

Section 14(2) provides for the circumstances in which a court may take judicial notice of a custom while subsection (3) of the same pro- vision provides that when a court cannot take judicial notice of a custom, such custom may be established by proof.

In establishing the existence of a custom by evidence, the com- mon approach has been to call on native chiefs or persons possessing special knowledge of the customary practices to express their opin- ion as to the existence of such customs.12 In addition to the testi- mony of chiefs, the courts may also have recourse to "any book or manuscript recognized by the natives as legal authority."'13

From the above, it seems that where the courts refer to any book or manual that is not accepted by the indigenes as an authori- tative document, such document cannot be admitted as evidence. Accordingly, in Adedibu v. Adewoyin14 it was held that where a court relies on a book in its judgment, and that book was not ten-

11. See, e.g., Evidence Law (Lagos Laws 1973, Cap 39), Evidence Ordinance (Ni- geria Laws 1948, Cap 63 in force in Bendel, Ogun, Ondo and Oyo States), Evidence Law (Northern Nigeria Laws 1963 Cap 40), Evidence Law (Eastern Nigeria Laws, Cap 49).

12. See, e.g., ? 56(1) Evidence Law (Lagos Laws, 1973, Cap 39). 13. ? 58 Evidence, Act (Federation and Lagos Laws 1958 Cap 62). 14. 13 W.A.C.A. 191 (1951).

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dered in evidence during the course of the proceedings, it had not complied with section 58 of the Evidence Act.

Proof Before Customary and Area Courts

Up to this point, it is clear that proof of customary law is a mat- ter of fact. The evidence enactments in Eastern and Western Nige- ria on proof of customary law before customary courts exempt those courts from the application of the Evidence Act in their proceedings unless a contrary order to that effect is made.15

The practice in Northern Nigeria differs in some respects. While Section 1(4)(c) of the Evidence laws of the Northern States provides that the evidence law does not apply to civil proceedings in area courts unless otherwise authorized (by an order), in criminal proceedings, the Area Courts are generally guided by the provisions of the Evidence law particularly ?? 137-142; but not ? 14 which deals with proof of customary law.16

Proof of Customary Law of the Area of Ju7isdiction of the Court

In proving the customary law of the area of the jurisdiction of the courts the courts are exempt from the general rule requiring proof of custom. This is the case where the members of the court are well versed in the customary law of the area. It is noteworthy that the rule requiring proof of customary law is not an inflexible rule. For example, where neither the judge nor the members of the court is versed in the customary law of the area, proof of such a cus- tom is necessary as the court is not precluded from calling wit- nesses.17 Where only one member of the court is versed in the customary law of the area of the jurisdiction of the court, the courts have proceeded to accept such customs as proven without further testimony.18 In such cases, the member's knowledge of the custom is accepted as conclusive proof of the existence or non-existence of the custom in issue. It is suggested that when only one member of the court is versed in the custom of the area, the court should not proceed without adducing further evidence establishing the exist-

15. See Eastern Nigeria Laws 1963, Cap 49, ? 1(2)(c), Magistrate Courts Law (Amendment) Edict 1971, No. 23 of 1971 East Central States, ? 16(1).

16. With the abolition of customary criminal law, proof of customary law is no longer required in criminal proceedings except in respect of offences defined by ref- erence to customary law. See e.g. ? 403 of the Penal Code (Northern Nigeria Laws 1963 Cap. 89), which makes drinking of alcohol by a member of the Islamic faith a criminal offense.

17. Ababio v. Nsemfoo, 12 W.A.C.A. 127 (1947). 18. See, e.g., Ehigie v. Ehigie, 1 All N.L.R. 842 (1961) and Ehioghae v. Ehioghae

N.M.L.R. 30 (1964).

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ence or non-existence of the custom. This is because it vests too much discretion in the judge and the assessors who sit with him.

The diversity of customs in a particular area and the size of the jurisdictional area of a court, are factors which influence the deci- sion to impute to a court, knowledge of customs within its jurisdic- tional area. For example, where the court is located in a very wide jurisdictional area, it is not presumed to know all the customs within its jurisdiction. Consequently, it is required to obtain evi- dence to prove the alleged existence of any custom.19 The same is the case for proof of customary laws outside the jurisdiction of the court.

Proof by Judicial Notice

A court may take judicial notice of a custom "if it has been ac- ted upon by a court of superior or coordinate jurisdiction in the same jurisdiction to the extent that 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."20

Implicit in the above provision is the notion that the custom to be applied must be popular or must have been frequently proven. Thus, frequent proof of a custom is a pre-requisite for judicial no- tice.21 This is known as the rule in Angu v. Atta.22 This has been codified as section 14(2) of the Evidence law of Lagos State.

According to Allot,23 the rule: appears to have been borrowed from the Law of England relating to the proof of usages in trades and professions so as to vary the existing terms of, or annex implied terms to a contract ... the principle upon which usage is admitted is essentially that it is notorious, and that it is thereby to form an implied term in a contract of the type affected by it ...

19. The rationale for this was expressed in the case of Gyang v. Gyang, N.N.L.R. 99, at 100.

20. Sect. 14(20) Evidence Laws (Lagos Laws Cap. 39, 1973). Similar enactments in almost identical terms exist in other states. Besides Customary law, the courts may also take judicial notice of "all Laws or enactments and any subsidiary legisla- tion made thereunder having the force of law now or hereto in force or hereafter to be in force in any part of Nigeria." See ?? 73(1)(a) of the Evidence Law of Lagos State, Laws of Lagos, Cap 39 (1973).

21. See Angu v. Atta, P.C. '74-28, 43, 44 (1916) where the Privy Council said inter alia, that a custom will not be judicially noticed ". . . until the particular customs have, by frequent proof in the courts, become so notorious that the courts will take judicial notice of them." Despite this clear principle, there have been instances in which the courts have held a single decision to be sufficient to make a court take judicial notice of a custom. See, e.g., Alake v. Pratt, 15 W.A.C.A. 20 (1935).

22. Ibid. 23. Antony N. Allot, New Essays In African Law, 271 (1970).

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The word notorious as used in the rule in Angu v. Atta is not interpreted to mean notorious in relation to those subject to the cus- tomary rule in question, but notorious to the judges or the courts concerned. This gives the courts a wide latitude of discretion in re- spect of what to treat as notorious. This makes them free to take judicial notice of local habits, and/or customs which in their opinion are consistent with their notions of natural justice, equity and good conscience; without distinguishing between customs and habits judi- cially noticed as a matter of fact and those judicially noticed as a matter of law.24

Given the wide latitude of discretion that the procedure for the proof of customary law confers on the courts, the rule in Angu v. Atta has been repealed in Ghana. The result is that in Ghana proof of customary law is now a matter of law.25 The process was her- alded by the passing of the Chieftaincy Act, of 1961 which provided for the assimilation of customary law to the common law of Ghana. This Act was drafted in conjunction with some Houses of Chiefs and embodied in a legislative instrument and by section 63 to take effect as "a common law rule of customary origin." Section 63(4) empow- ers the courts to refer to textbooks, manuals, and other sources. Presumably, the rational for this may have been to widen the scope of the definition of customary law from that declared by the courts to include those which may have been documented without neces- sarily being subjected to the tests of repugnancy. In this way, the doctrine of repugnancy in Ghana has been abolished.

24. Supra n.18 at 272. For a detailed discussion on the rule in Angu v. Atta, see Park, Sources Of Nigerian Law 92-96 (1963).

25. See ? 65 Courts Act, Act 84 of 1966. This is now contained in ? 50 of the Courts Act, Act 372 of 1971. It provides as follows:

(1) Any question as to the existence or content of a rule of customary law is a question of law for the courts and not a question of fact.

(2) If the court entertains any doubt as to the existence or content of a rule of customary law relevant in any proceedings after considering such submissions thereon as may be made by or on behalf of the and consulting some reported cases, textbooks and other sources as may be appropriate, the court shall adjourn the proceedings to enable an in- quiry to take place under the next section.

(3) The inquiry shall be held as part of the proceedings in such manner as the court considers expedient and the provisions of this Act relating to the attendance of witness and testimony shall apply for the purpose of tendering of opinions to the court at the inquiry, but shall apply sub- ject to such modifications as may appeal to the court to be necessary.

(a) the decision as to the persons who are to be heard at the inquiry shall be one for the court, after hearing such submissions thereon as may be made on behalf of the parties. (b) the court may request a House of Chiefs or a Divisional or Traditional Council or other body possessing knowledge of the customary law in ques- tion to state its opinion which may be laid before the inquiry in written form.

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The Validity Tests

For a custom to be applied by any court, it must conform to the standards set out in the various High Court Laws, which provide that firstly, the custom should not be repugnant to natural justice, equity and good conscience, secondly, it should not be directly or in- directly incompatible with any Law for the time being in force, and thirdly, it should not be contrary to public policy. These standards have also been enacted as part of the Nigerian Evidence Act.26

The Repugnancy Test

Two different approaches could be adopted in the interpretation of the repugnancy doctrine. The first is to interpret the expression as three distinct and independent phrases and the second will be to interpret it as a single expression. If the first approach is adopted, it will be necessary to ascribe a definite meaning to each of the phrases. The word equity has two meanings. According to Snell:27

[t]he term "equity" has a broad and popular sense and a narrow and technical sense. In its popular sense equity is practically equivalent to natural justice or morality and in its technical sense the jurisdiction of Chancery. From the above, it could be inferred that equity in the broad

sense is what was being referred to and not the jurisdiction of Chan- cery whose administration is fused in Nigeria. In others words, the same court administers the doctrines of equity as developed by the Chancery Court in England and the Common law.

The phrase "natural justice" like "equity" should not be consid- ered to mean natural justice in its technical sense, i.e., the principles of natural justice, as

[t]he words "natural justice" were here clearly not intended in their restricted modern sense but were synonymous with natural Law; in the same way as the word "equity" did not refer to technical equity, i.e. the Chancery Court but to Jus Naturale. In other words "natural Justice and equity" in this passage meant the same thing, i.e. natural Law.28 While the above passage is to some extent helpful in defining

the scope and content of the phrase, however, its equation of natural justice (as practically equivalent) to equity tends to create some dif- ficulty in ascertaining the meaning of "natural justice."

In respect of the phrase "good conscience," it is suggested that

26. Sect. 14(3) Nigerian Evidence Act, Laws of Nigeria Cap. 62. 27. Megarry & Baker, Snell's Principle of Equity 3 (24th ed., 1954). 28. Marshall, Natural Justice 9 (1959).

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its meaning should not be sought in isolation of equity. This is because

[i]f we look for one general principle which more than any- thing has influenced equity as it was developed by the Chancery, we find it in a philosophical and theological con- ception of conscience. . . In the common law courts of the thirteenth and fourteenth centuries, we hear a good deal in many connections about "conscience," "good faith," "rea- son," "conscience and law," "the law of conscience," "right and reason," "reason and good faith," of "equity" we hear very little.29

As Maitland indicates, about three centuries later, the relationship between "equity and good conscience" became firmly established. In his words,

[i]n the course of the sixteenth century we begin to learn a little about the rules that the Chancellors are administering in the field assigned to them. They are known as "the rules of equity and good conscience.30 One thing is evident from the above discussion a fortiori; that is

while the meaning of "equity" may not be synonymous with "good conscience," the meaning of equity in its broad sense encompasses the concept of "good conscience". Consequently, the phrase "equity and good conscience" may at best be considered as superfluous.

The foregoing discussion illustrates some of the interpretational problems to be encountered if the phrases are interpreted as differ- ent and independent phrases. Unfortunately, this has sometimes been the case in exceptional cases when judges tended to import the technical English meaning of these phrases into the interpretation process instead of adopting a moral, liberal and flexible approach.31

Given the problems involved with construing the phrases inde- pendently, it is suggested that a single meaning be ascribed to the phrase. This approach seems to enjoy considerable support32 and is also consistent with judicial practice. From the discussion so far, it is clear that the phrase has no precise meaning.33 This lends credence to the second method of interpretation. We shall now ex-

29. Carleton Kemp Allen, Law In The Making 381-382 (1930). 30. Frederic Maitland, Equity 8 (1936). 31. Park, supra n.24 at 69. 32. Id. See also Okonkwo, Introduction to Nigerian Law 43 (1980). 33. Speed, Ag. C.J. in the case of Lewis v. Bankole, 1 N.L.R. 82, at 84 (1908) said

"I am not sure that I know what the terms natural Justice and good conscience mean. They are high sounding phrases and it would of course not be difficult to hold that many of the ancient customs of the barbaric times are repugnant thereto, but it would not be easy to offer a strict and accurate definition of the terms."

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amine some judicial decisions to illustrate how the courts have per- ceived the essence of the phrase and how they have construed it.

In Laoye v. Oyetunde,34 Lord Wright expressed the view that the repugnancy clause was intended to invalidate barbarous cus- toms. A similar view was expressed by Lord Atkin in Eshugbayi Eleko v. Officer Administering Government of Southern Nigeria,35 in which he expressed the view that a barbarous custom must be re- jected on the grounds of repugnancy to natural justice equity and good conscience. In both cases referred to above, neither of the Law lords attempted to state albeit in a pedestrian manner the customs referred to as barbarous. In the absence of any such indication, it would appear that both Lords Wright and Atkin are of the view that where a custom fails to conform to the values of advanced societies, such customs should be taken as having failed the test of repug- nancy. Such thinking was not uncommon among the early English judges. For example, in Lewis v. Bankole36 the full court of the supreme court rejected the view (of the trial judge) that because a custom was not part of the English doctrines of equity it was invalid by virtue of the repugnancy test.

The Test of Incompatibility

The second test, the test of incompatibility, enjoins the courts to enforce any custom which is not incompatible with any law for the time being in force. The meaning of the phrase "any law for the time being in force" is not clear. Should it be construed to include customary law or it should only be limited to received English law. It is my view that the scope of the phrase is wide enough to include both customary law and received English law.

Judicial decisions on the issue seem to limit the meaning of the phrase to the received statutes of general application, as well as, the received common law. For example, in Re Adadevoh37 where the phrase was considered, Verity, J. expressed the view that the mean- ing of the phrase should be construed to include the rules of the common law where a party seeks to enforce a claim contrary to pub- lic policy. The Supreme Court adopted a similar approach in Adesubokan v. Yinusa.38 However, it added that the operation of the rules of the common law and the doctrines of general applica- tion should not be applied in such a way that they would deprive a person of any benefits accruing to him/her under native law and

34. A.C. 170 (1944). 35. A.C. 662 (1931). 36. Supra at n.33. 37. 13 W.A.C.A. 304 (1951). 38. N.M.L.R. 77 (1971).

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custom (which had already passed the test of repugnancy). It would appear that the interpretation adopted by the supreme court in the above case, appears to exclude other local enactments. In the case of Rotibi v. Savage,39 where the interpretation of the phrase was again in issue, it was held that it should be construed to include any local enactments. It is submitted that this is a preferable interpretation.

The Test of Public Policy

The test of public policy has very often been considered to be part of the test of incompatibility and a rule of common law.40 Con- sequently, there is a dearth of cases on that test. In a nutshell, the test posits that any custom which is contrary to public policy is inva- lid.41 As the test of public policy is open-textured and wide enough to include the repugnancy test, it is arguable that cases under the re- pugnancy doctrine could also be said to be cases involving the test of public policy. Thus, it may include anything that offends the sensi- bilities of the society. For example in Re Adadevoh,42 where the Yo- ruba custom of legitimation of children by acknowledgement of paternity was in issue, Verity, J., said in obiter that if a custom en- couraged promiscuity it would be contrary to public policy. In this particular case the Evidence Act was relied upon.

The discussion so far reveals that the validity tests, of repug- nancy, incompatibility and public policy are terribly vague. This is evident from the fact that the judicial decisions evince no generally agreed criteria by which the tests are applied.

Aspects of Repugnancy

When a custom is said to be repugnant to natural justice equity and good conscience, it may be interpreted to mean three things; namely repugnant in relation to substantive law, repugnant in rela- tion to procedure, or repugnant in relation to the degree of punishment.43

Repugnancy in Relation to Substantive Law

One of the areas in which this aspect of the repugnancy doctrine has been vigorously applied, has been in respect of the so called

39. 17 N.L.R. 77 (1944). 40. This has been enacted as ? 14(3) of Evidence Act of Nigeria Cap 62 Laws of

The Federation of Nigeria. 41. A similar view was also expressed in the case of Alake v. Pratt 15 W.A.C.A.

20 (1955). 42. Supra at n.37. 43. Lewin, "The Recognition of Native Land and Custom in British Africa," 20 J.

Comp. Leg. (3rd series) 16-23 (1938). See also Ekow Daniels, "The Influence of Eq- uity In West Africa," 2 Intnt'l. & Comparative L. Q. 39-48 (1962).

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"barbarous" customs. These include inter alia, the killing of twins (infanticide), banishment of "social outcasts," slave owning, and cus- tomary burial practices.44

The killing of twins was a widespread practice in Eastern Nige- ria. This was largely based on the belief that twins were a sign of bad omen for the communities into which they were born. Addi- tionally, they were thought to bring evil and bad luck to their com- munities. Consequently, they were not allowed to live. While this may today sound like a gory tale about a bloodthirsty people, it had very serious philosophical underpinnings; that is, the society could both be destroyed by both internal and external forces.

The internal forces, i.e., customs, social practices, morals etc. could decay as a result of permissiveness. Consequently, the mem- bers of the society had a duty to take appropriate steps to protect themselves by ridding the society of all the undesirable elements that threatened its existence. In this context, the custom may be understood as furthering the course of the society's development and not simply as a barbarous custom, fostering infanticide. The fu- eling of the great inquisitions of the feudal era involving thousands of human lives, and the Druid and Celtic practices involving human sacrifices may be justified on similar grounds.45

However, as the decision to kill a set of twins was based on su- perstition which is not verifiable, the decision of a community to kill the twins, at best is arbitrary. This is because there is no objective method of determining whether the failure to kill the twins could indeed cause any harm to the community.

Repugnancy Relating to Procedure

It is arguable that the statutory provisions directing the courts to apply local customs subject to their passing the repugnancy test also includes adherence to all the standards set by the English courts. Accordingly, in some cases the courts have attempted to ap- ply the two principles of natural justice recognized by English Law. They are the rule against bias (nemo judex in causa sua) and the rule requiring fair hearing (audi alteram partem).

Thus, in Thomas and Others v. Oba A. Ademola 11 and ors.46

44. In some communities in Nigeria, it was the practice to bury the dead in their homes, either in a room or in the compound. While this is now expressly prohibited by ? 246 of the Criminal Code, Laws of Nigeria Cap. 42 the practice is still an inte- gral part of Bini culture. Consequently, they bury their dead in their homes. This is particularly the case for the rich and affluent as well as those with chieftaincy titles. The Binis are an ethnic group in Bendel State of Nigeria.

45. I must not be mistaken to be making a case for the continued killing of twins. In fact, today this practice is regarded as a criminal offense.

46. 18 N.L.R. 12 (1945).

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The plaintiff was "drummed out" of the Iwarefa body by his fellow Iwarefa chiefs without being given notice of allegations made against him and an opportunity to defend himself or answer the charges. The court held that the actions of the defendants amounted to a vio- lation of the native law and custom relating to the deposition and/or suspension of a chief, and the legal maxim audi alteram partem. The rule against bias is illustrated by the case of Modibbe v. Adamawa Native Authority.47 The appellant in this case was sen- tenced to a term of twelve months imprisonment by the Lamido of Adamawa for writing an insulting letter to the Adamawa Native Au- thority Council. The Lamido as president of the Council, with other members heard and decided the case. The appellant contended that the Lamido was an interested party to the dispute because he was the president of the council to which the alleged insulting letter was addressed. Accordingly, he should have deferred the decision to the Alkali Court. The respondents contended that the Alkali had no power to hear a dispute between a ruler and a subject, therefore the case was rightly decided by the Lamido. However, the High Court rejected the argument of the respondents, and held that although the Lamido was the appropriate person to settle religious disputes, he could not do so when he himself was an interested party. To se- cure the right of individuals to fair trials, these principles of natural justice were enshrined in Chapter Three of the Nigeria (Constitu- tion) order in Council, 1960.48

The application of the repugnancy test to matters relating to procedure seems to suggest that once a customary or indigenous rule of procedure is not compatible with English law, it would be de- clared repugnant to natural justice, equity and good conscience.49 In respect of the above, the dictum of Lord Hailey50 is instructive. He said:

It would be a mistake to assume that primitive Africa made no provision for the decision of contentious issues, there ex- isted every where a recognized means of securing decisions on them, beginning with the arbitrament of family heads or of heads of kin groups and ending with more formal adjudi- cation by a chief, or a chief and his council, or some form of clan or tribal moot. .. If these tribunals have their limita-

47. N.R.N.L.R. 101 (1956). 48. S.I. 1960/1652, ? 21(1) provides that: "In the determination of his civil rights

and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality." See also Chapter Four of the 1979 Con- stitution of Nigeria Section 33.

49. Supra n. 34. 50. Lord Hailey, An African Survey 628-629 (1956).

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tions, they nevertheless seemed to have been accepted as dispensing justice to the satisfaction of those who sought their decisions...

Repugnancy in Relation to Punishment

Punishment in traditional societies took a wide variety of forms. They included banishment, curses, trial by ordeal of various types such as swimming in a pool of crocodiles and sometimes capitation.

To ensure that individuals punishment fit the crimes they com- mitted, some statutes were enacted to regulate punishment meted out in response to breaches of customary practices or rules. One such statute is the old Native Courts Ordinance of Nigeria (Cap. 142) ? 2 of which provides as follows:

For offences against any native law or custom a native court may, subject to the provisions of this Ordinance, impose a fine or imprisonment or both, or may inflict any punish- ment authorized by native law or custom, provided it does not involve mutilation, or torture, and is not repugnant to natural justice and humanity.51

Determinants of Repugnant Customs

At this point of the discussion, it is difficult to point to any clear and succinct criteria by which the courts enforce or reject a custom on the grounds of repugnancy. This may not be unrelated to the fact that the repugnancy doctrine in itself has no precise parameters. Thus, it would appear that the standard used in assessing the cus- toms is based on English standards of morality. The late Right Hon- orable Sir Sidney Abrahams, at a lecture delivered at the London School of Economics in 1948,52 said:

Morality and justice of course mean British and not African Conceptions of these. Were that not so British justice would be looking in two different directions at once. At this juncture, it is appropriate to ask why indigenous cus-

toms have to be looked at through the monocle of an Englishman? The answer to this is not far-fetched. It is part of a rather insular tradition which was exemplified in the attitude of the average Eng-

51. A similar provision can be found in the Nigeria (Constitution) Order in Council, 1960, ? 187 S.I. 1960/1652. It provides that "No person shall be subjected to torture or to inhuman or degrading punishment or other treatment." See generally ? 30-33 of the Constitution of the Federal Republic of Nigeria 1979 Constitution. See also ? 145(1) of the Criminal Code of Western Nigeria (1959 Cap. 28) which makes trial by ordeal of various types a criminal offence.

52. Abrahams, "The Colonial Legal Service and the Administration of Justice in the Colonial Dependencies," 30 J. Comp. Leg. & Int'l L. (3rd series parts 3 & 4) 1-11 at 8 (1948).

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lish lawyer towards African law and its institutions. In the words of an administrative officer who once served in Northern Nigeria:

The attitude of the English Lawyer towards African law and custom is not that of adaptation but contempt for a worthless thing, which should be abandoned and replaced by European law whole and undefiled.53 It is this attitude that largely influenced the decisions handed

down by the courts in respect of the validity of customs. As we have seen, there is no defined criteria for declaring cus-

toms as repugnant. Given this situation, we will turn to a considera- tion of some judicial decisions to see if we could determine any factor(s) which seems to influence the outcome of decisions on the repugnancy test.

Thus, in Edet v. Essien,54 a Nigerian divisional court held that a custom which entitled the respondent to the two children born to the appellant due to failure to repay the respondent his dowry, was repugnant to natural justice equity and good conscience. The cus- tom in issue was based on the customary rule which provided that any child born during the subsistence of a marriage will be pre- sumed to be the child of the husband; where the paternity of such child is in issue. The attitude of the court appears to have been in- fluenced by the fact that it was inconceivable to accept that a biolog- ical father could lose the custody of his child on the grounds stated above. Accordingly, the custom was declared repugnant and custody of the child awarded to the biological father. In another case Ejanor v. Okonome,55 the plaintiff/respondent brought an action seeking the paternity and custody of a child. The parties had been married according to Ishan customary law but the wife later deserted her husband and went to live with her father. During the period, she became pregnant by another man, while the marriage had not been dissolved. The lower court held the customary rule similar to the one discussed in the earlier case repugnant. On appeal to the High Court, the learned Judge upheld the presumption in Ishan custom- ary law that a man to whom a woman is married is the father of the child born during the subsistence of the marriage. The earlier case of Edet v. Essien56 was distinguished on the grounds that in that case the claimant/suitor was not married to the woman but was only betrothed before she got married to the second man. In addition, the learned judge said:

I think we must not be in a hurry in our courts to con-

53. 38 J.A.S.. 161 (1939). 54. (1932) 11 N.L.R. 47. 55. B.S.S.J. 78 (1976). 56. Supra n. 50.

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demn the old and established customary law of the people by holding that is against natural justice, equity and good conscience, where the people have all along regulated their lives by that custom.57 This decision is significant in that, it affirms the view that the

fact that a custom may work hardship is not sufficient grounds to declare it repugnant. Rather, its value and place in the society is a significant factor which should be carefully considered in declaring a custom repugnant.

From the foregoing, it is possible to discern a trend which seems to indicate that the courts are likely to declare a custom repugnant where in their opinion, the outcome of the decision will offend their notion of natural justice equity and good conscience. In arriving at such decisions, the courts also tend to take into account the effects that their decisions are likely to give rise to. This is usually the case where there is no clear custom governing the dispute.

In such cases, the courts also fall back on the principles of natu- ral justice equity and good conscience. This is what is referred to as the residuary clause. It is called residuary because it gives the courts a wide latitude of discretion to apply the customs that they deem equitable.

CUSTOMARY LAW OR JUDGE MADE LAW?

A close scrutiny of the judicial attitude towards customary law reveals that customary law as a formal source of law has undergone a tremendous metamorphosis. Its source of authority, i.e., the ac- ceptance of the community, is considerably weakened by the fact that it is still subject to the test of repugnancy or the validity tests at large.

Consequently, acceptance of a custom per se does not render it valid. Rather, the judicial validation and acclamation of the custom as such.58

Thus, the validity of customary law no longer depends solely on the assent of the community but also to a lesser extent on the opin- ion of the judge, applying the repugnancy test.

Commenting on the role of judges in the creation of customary law in Nigeria and Ghana, Woodman59 said that customary law in post colonial Nigeria, is an artificial creation of the courts. Conse- quently, he draws a distinction between the customary law arising

57. Supra n. 51. 58. See generally the discussion on the repugnancy doctrine at 12 ff. 59. Woodman, "How State Courts Create Customary Law In Nigeria and

Ghana." (Paper presented to the Seminar of the Commission of Folklore and Legal Pluralism xi, August 1983, Vancouver, Canada).

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from accepted practices, and that "created" by the courts. He calls the former, sociologist's customary law and the latter "lawyer's cus- tomary law." He argues that customary law as declared by the courts does not reflect or reproduce the "sociologist's customary law." The sociologist's customary law is very close to Savigny's con- cept of "volksgeist."60

Indeed, when the courts, claim to be declaring what the custom- ary law is, they do not do so in the sense in which we know it in English law. Rather, they also subject the customs to tests based on English values; thereby transforming the ascertainment process into a process of validation.6'

EMERGENT PROBLEMS

The effect of the various colonial "reception" statutes on Niger- ian customary law may be summarized as follows: when a rule of customary law fails the test of repugnancy, such rule fell outside the scope of enforceable law, and therefore was denied the status of law. Thus, it is this highly selective process that elevates a particular cus- tom to the status of law properly so called and not the consent of the society. This raises very important questions. For example, what does the term customary law really mean and how does one delimit it given that, it is the subject of judicial interpretation, fos- tered by judicial precedent? Could the judicial creation and modifi- cation of customary law in terms of a foreign legal system and its standards, which sometimes ignores widely accepted practices fol- lowed by a community still be considered as falling within the defi- nition of customary law? If the answer is in the imperative, is the practice not a contradiction of the widely held belief that English judges do not make laws?62 Could this fact of "judicial legislation" be dispensed with on the grounds that it did not matter in respect of "primitive societies" who were after all being exposed to civilization?

At the bottom of all this is the problem of determining the na- ture of the factors that transform a custom into law. As we have seen from the definitions of customary law above, a consensual ele- ment is a crucial factor for denoting any custom as part of the

60. According to this concept, law emerges and evolves in accordance with the spirit of the people in accordance with the spirit, ethos and popular spirit of the peo- ple in a "continuous tradition" and only changes in accordance with their growth and development. See Carl von Savigny, System Des Heutigen Romischen Rechts 174 ff. (1840).

61. Under English common law, a judicial enquiry of a custom is only an exer- cise of ascertaining the existence or non-existence of a custom and not an act of vali- dation. See generally the statement of Sir Sidney Abraham, supra 52.

62. See Friedmann, Law in a Changing Society 24 (1959).

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corpus of valid customary law.63 To enable us to focus on the discus- sion, we shall briefly outline two philosophical views on the transi- tion of a custom to law.

According to Austin,64 law is a command of a sovereign to a peo- ple who are in a habit of obedience to him. However, the sovereign is not in a habit of obedience to anyone.

Austin's conception of law as a command seems to suggest that only conventions and or customs decreed by the sovereign are valid as law. It therefore follows that customs and conventions recognized through some official, i.e., the legislature or judiciary can elevate a custom to the status of law. Thus, if a custom is to be regarded as part of the law, it would only be so to the extent that it emanated from a sovereign act. In the circumstances, one is left wondering if it is not a non sequitur to define customary law as law emanating from the people.65 Is customary law then not a contradiction in terms?

Apart from the definitional problem, there are other problems, such as what happens if after a custom is recognized as law and the accepted social practices do not change with the law? Do the old customs then cease to be law and what happens to the new customs which may be prevalent in the community? Will the two customs exist side by side? Presumably, the old custom may be forgotten. However, if it is well established, it is likely to outgrow the new cus- tom. This will not be without some difficulty, where the newer cus- toms confer substantial benefit which the older custom may not.66 These are some of the problems that Austin's command theory does not address. We shall now turn to a consideration of the historical school's conception of law.

In the 18th century, at the time when law had developed to its

63. Supra nn. 6 and 7. 64. Austin Campbell (ed.), The Province of Jurisprudence Determined (1875). 65. Atkin, supra n. 8 and Jegede, supra n. 9. 66. For example, in the area of customary land law, land is owned by families

and communities; and the sale of land cannot be validly made except with the con- sent and concurrence of the head of the family acting together with the principal members of the family. However, with the introduction of English doctrines of es- tate and tenure, individual members of families have attempted selling land without regard for this rule. Today, the result is a mass of confusion in customary land transactions.

To address this problem, the Land Use Decree of 1978 was passed. It vested all land in the Governors of the various states to be held in trust for the people. Thus, enjoyment of interest in land inheres by virtue of Nigerian citizenship and no longer by membership of a family, clan or community. Despite this, various families still purport sell land according to customary law even though there are only two recog- nized interests in land, namely a customary right of occupancy and a statutory right of occupancy. The above illustration highlights some of the problems of having old customs existing side by side with newly declared regime of legal norms which are far removed from customary practices which the people are used to.

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climax as a sovereign act, Carl von Savigny propounded a theory that there was a direct relationship existing between any people, their way of life, and the law operating in their community. In other words, the law of any society mirrors the common conscious- ness, aspirations, will and ethos of the community. The evolution of the law in accordance with the spirit of the people enables changes to occur only in accordance with their growth and development.

While this conception of law may be closer to the essence of cus- tomary law as perceived by both the courts and some academic writ- ers,67 it underscores the problem of establishing that a custom is firmly rooted as part of the community's customary practices.

The Savignian approach presupposes that the mere demonstra- tion of the existence of a custom may suffice in order to consider it as a source of law. Another weakness of Savigny's approach is that it does not provide a way of changing decaying and outmoded cus- toms. The net result of this is that it is difficult to distinguish be- tween law and nonenforceable custom.

IMPLICATIONS

The influence of English law on customary law has been tre- mendous. It has been the yard stick by which customary practices have been validated or rejected as part of the corpus juris. The se- lective application of English law to customary law has resulted in a fundamental duality of laws applied by different courts; customary law in customary courts and English law in the English type courts. This sometimes give rise to conflicts of law problems involving cus- tomary law and English law as alternatives.68 This happens when both English law and customary law govern a particular situation. The application of customary law in the circumstances is due to the express stipulation that they are also applicable.

The express preservation of such customs does not make them incompatible with the local enactments. For example, section 1(2) of the Property and Conveyancing Law69 (PCL) of Bendel, Ondo, Ogun and Oyo States exempt customary law transactions from the ambit of the PCL.70 Thus, customary land law in these States is not incompatible with the PCL. However, the problem may arise when it comes to determining whether a particular land transaction is gov- erned by the PCL or customary land law.

The continued subjection of customary law to the repugnancy

67. See Atkin, supra n. 8 and Jegede, supra n. 9. 68. For a detailed discussion of conflicts between customary law and received

English law, see Obilade, The Nigerian Legal System 145-165 (1979). 69. Western Region of Nigeria Laws 1959, Cap 100. 70. See also section 1(2) of the Prescription Law (W.R.N. Laws Cap. 95, 1959).

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test has been said to be a tacit affirmation that Nigerian customary laws lack any element of equity and justice.7' With due deference to Akkufo, I think that the subject of customary law to the validity tests affirms the view that some of the customs were deficient in that respect and not that customary law had no notion of equity and justice. Akkufo's interpretation seems to suggest that the applica- tion of the repugnancy test overlooks the fact that every legal sys- tem has its notion of justice justice being a relative term. In this respect, it is appropriate to quote Professor Hanbury72 who said:

[e]very legal system must at sometime in its history have felt the need for equity and that the methods of equitable intrusion have pursued widely different paths according to the peculiar history of different societies. From the above observation, it is clear that the methods of equi-

table intrusions differ from one legal system to another. Conse- quently, it is not accurate to assume that some legal systems have no sense of equity and justice.73

Another effect of the judicial development of customary law in Nigeria, is the premature crystallization of customary law through the system of judicial precedent. While it is desirable to have cer- tainty in law, it is also necessary to apply the doctrine of precedent only when the custom is fairly certain. In the absence of well devel- oped customs, there is a tendency to perpetuate errors in the inter- pretation process.

In general, the effects of English law on customary law could be summarized thus:

The magnitude of the effects of culture contact in this sphere can hardly be exaggerated. The foundations of na- tive law are being undermined at all points. In the first place, the social system on which it is based is being pro- foundly disturbed and altered. Individualism is gaining ground. Secondly, modern conditions generally and the set- ting up of permanent centralized judicial bodies in particu- lar necessitate the crystallization of native law into a set code of rules, involving a clear distinction between law and non-enforceable custom. Thirdly, there is an urgent and ever-increasing need for native law to adapt itself to the conditions of modern African Society, and to take account not only of changes which are affecting traditional institu- tions but also of the entirely new elements which are in-

71. Akkufo, supra n. 10 at 10. 72. See Kopel Kahana Hagan, Three Great Systems of Jurisprudence vi-vii

(1955). 73. See Lord Hailey, supra n. 50.

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truding. In other words, the slow, almost imperceptible processes by which indigenous law developed in the past are totally inadequate to keep pace with modern requirements. And fourthly, the institutions upon which the knowledge and preservation of native law depended are tending to pass more or less rapidly into desuetude.74 Despite the negative influence that English law has exerted on

the development of customary law, it has also made some significant contributions to its development. Firstly, the process of recognition and adoption of customary law in some respects made it possible to adapt customary law to meet the changing \needs of the society. For example, the process has been used to maintain and advance the se- curity of persons from harsh and cruel punishments.75 Secondly, by the process of ascertainment and proof of customs, i.e., testimonies of chiefs, elders, etc., the courts prevented the total disintegration of customary law under the weight of the received English laws. This has ensured the stability of the customary way of life even if it is limited to the customs not repugnant to natural justice, equity and good conscience.

PRESCRIPTIONS

The judicial development of customary law has followed a rather tortuous path, marked by the application of vague standards for the ascertainment and proof of customary law.

While these standards may have made significant contributions to the assimilation of customary law as part of the received English laws, they still remain vague and indeterminate. Their application has sometimes led to the co-existence of two or more customs strug- gling for primacy, result being the perpetuation of customs long af- ter they have been declared not to be part of the recognized corpus of customary law. Moreover, what is fondly referred to as custom- ary law by the courts does not accurately capture the essence of cus- tomary law as recognized and accepted in traditional Nigerian society.

Given this state of affairs, it is necessary to find a means of in- jecting some certainty in the process of validating customs. To achieve this, it will be necessary to abandon the validity tests.

In their place will be the requirement that proof as to the exist-

74. Phillips, "Report on Native Tribunals in the Colony and Protectorate of Kenya," para. 820 (1945). While the report refers to conditions in Kenya, the same conditions also hold true for Nigerian native law and custom.

75. The outlawry of trial by ordeal of various types in the throughout the federa- tion is largely as a result of the Judicial processes commitment to rid the society of cruel customs. See, e.g., section 145(1) of the Criminal Code of Western Nigeria, Cap. 28.

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ence or the content of any customary law shall be a question of law for the courts. This will place the determination of the existence and the contents of any alleged customs squarely in the hands of the courts. This will obviate the necessity of falling back on the validity tests. Where the court entertains any doubt as to the existence or the content of any rule of customary law, it may consult such manu- als, books and sources as it may consider appropriate. Additionally, it could request a traditional council or any other body possessing any knowledge of the custom to present its views in written memo- randa to enable it arrive at its decision.

In evaluating the customs, the courts are urged to consider among others, the place of the custom in the community, its value and influence, and whether its application is in accordance with the rule of law and the spirit of the constitution. In this way, the courts will not be saddled with the problem of determining different stan- dards of natural justice, equity, and good conscience to be applied to the various communities, and whether the custom violates their no- tion of public policy.

The efficacy of the suggested approach lies in the fact that it evaluates the custom from the point of view of the community as well as against the spirit of the constitution. This provides the much needed safeguards and makes for better clarity. Moreover, the out- come of the decisions will be more consistent with a notion of cus- tomary law which reflects the common consciousness and aspirations of the people. This is because the views of the chiefs and the Constitution (an organic document expressive of the hopes and aspirations of the people) serve as indispensable sources of authority for measuring the validity of customs which confer rights, duties and obligations on individuals. These will be fostered by the fact that customs will now be evaluated through the monocles of Nigerians and not Englishmen. Furthermore, with Nigerian judges deciding these cases they are more likely to appreciate certain values that may be attached to some customs better. Finally, with the ever growing number of manuals on the customary practices of various ethnic areas, it may be easier to prove the existence or the content of customs.

CONCLUSION

The magnitude of the effects of English law on native law and custom has been overwhelming. This has forced customary laws into a process of passing into desuetude. This means that the very foundations which support it have been greatly undermined and the social system on which it is based has also been profoundly altered. While the process of alteration has in some respects been positive,

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the magnitude of the transformation has led to changes which not only affect the traditional institutions of customary law, but also se- riously question the basis of customs and the values underlying the traditional way of life.

While it is necessary to adapt to change, it should not be at the cost of losing all the customs which have for so long guided the lives of the people. Inasmuch as change and development must be en- couraged, this must be fostered within the framework of existing customary institutions and values, making adaptations where neces- sary. This is with a view to securing effective regulation of socio- economic relations as well as legal efficacy. In the words of Presi- dent Nkrumah, for law to be effective, it

must represent the will of the people and be so designed and administered to forward the social purpose of the state... Law is converted into a reactionary force once it is regarded as an abstract concept, which is in some mysteri- ous way universally applicable to the economic and social conditions of the country in which it is applied ... The law should be the expression of the political, economic and so- cial conditions and of their aims of progress.76 Customary law has a potentially useful role in the socio-eco-

nomic and political development of Nigeria. This potential should be harnessed in furtherance of the social purpose of the state and not be allowed to decay through the process of desuetude.

76. Nkrumah, 6 J. African L. 103-104, 107-108 (1962).