The Role of Customary Law In Contemporary Nigerian Legal System

CONTRIBUTOR: ANEKWE ANGELA EKENE

INTRODUCTION

Customary law holds a significant place in Nigeria’s legal system, reflecting the diverse cultural practices and traditions of over 250 ethnic groups.^[1] Customary law in Nigeria predates colonial rule, having governed the lives of the people long before the advent of statutory laws.^[2] With the British colonisation of Nigeria, the legal system was modified to incorporate customary law alongside the common law. Customary laws are derived from the customs and traditions of various communities, coexisting with statutory laws and the received English laws.^[3] Despite the dominance of formal statutory law introduced through colonisation, customary law remains relevant in modern Nigeria, particularly in the regulation of personal matters such as marriage, succession, land tenure, and traditional dispute resolution mechanisms.^[4] Its persistent relevance is rooted on its deep acceptance by local communities, particularly in rural areas where formal legal systems may be inaccessible or inadequate. Understanding the role of customary law is essential for grasping the complexity of Nigeria’s legal framework.

This article examines the definition, nature, and sources of customary law in Nigeria. It analyses its applicability and influence in contemporary Nigerian society, reviews the constitutional and judicial recognition of customary law, and highlights the legal conditions for its enforceability. Further, the article critiques the contradictions and conflicts between customary and statutory laws and makes recommendations for reform aimed at fostering a more integrated and rights-compliant legal framework.

THE CONCEPT AND NATURE OF CUSTOMARY LAW IN NIGERIA

Customary law refers to the laws which are derived from the customs of the people.^[5] In Oyewunmi v. Ogunesan^[6] Obaseki JSC defined “customary law” as “the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory, in that it controls the lives, and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people.^[7] Customary Laws emerge from the tradition, usage and practice of people in a given community which, by common adoption,acquiescence on their part and long and unvarying habit, have acquired, to some extent, elements of compulsion and the force of law with which it has acquired over the yearsthrough constant, consistent and community usage. It attracts sanctions of different kinds and is enforceable.^[8] Putting it in a more simplistic form, the customs, rules, traditions, ethos and cultures which concern the relationship of members of a community are generally regarded as the Customary Laws of the people”. It follows from the foregoing that for custom, usage, convention or tradition to be binding and enforceable among the people of a particular community, it must have either been accepted, adopted or acquiesced to over a long period of time.^[9]

A major feature of customary law is that it is unwritten. Its rules are well known by members of the community whose conduct it regulates. It was handed down through the ages, from generation to generation.^[10] Another feature of customary law is that parties to a dispute subject to customary law are usually no strangers to each other. There is usually a tie binding them, it could either be social, marital or tribal. Customary laws are flexible as they remain evolutionary, and capable of adaptation to changing circumstances. In Lewis v. Bankole^[11], Osborne C.J. opined that one of the most striking features of West African Native custom is its flexibility; it appears to have always been subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its individual characteristics. Webber, J. in Barimah Balogun and Scottish Nigerian Mortgage and Trust Co. Ltd. v. Saka Chief Oshodi^[12] stated that the chief characteristic of Native law is its flexibility, one incident of land tenure after another disappears as the times change but the most important incident of tenure which has crept in and become firmly established as a rule of Native law is alienation of land.^[13] In Olubodun v. Lawal^[14], the Supreme Court was explicit that a major characteristic of customary law or custom is that it must have been in existence at the relevant time and must be recognised and adhered to by the people to make it binding. And secondly, that it is a well-established principle of law that documentary evidence is unknown to native law and custom.^[15]

Finally, changes in customary law typically evolve from usage and are not formally declared, as in Western legal systems, where a statute could repeal or amend a law by making declarations to that effect. The explanation seems to be that most traditional societies, like the Igbos, did not have a legislature or sovereign who could declare such changes in the customary law. Once a new customary law has evolved and is generally accepted, it becomes binding on all the members of the community, so much that any member who resists its application does so at the risk of customary sanctions.

THE SOURCES OF CUSTOMARY LAW IN NIGERIA

Customary law in Nigeria is primarily derived from the customs, traditions, and practices of the various indigenous communities. It evolves from the social, cultural, and economic life of the people. Key sources of Customary Law include:

1. Unwritten Customs: These are norms passed orally from generation to generation and followed by members of the community.
2. Judicial Decisions: Courts, especially customary courts and superior courts of record, have played a key role in defining, recognising, and standardising customary laws through precedents.
3. Legislation: Some customary laws have been codified, either directly or through statutes that make reference to customary practices (e.g., the Land Use Act and Marriage Act).

THE APPLICABILITY AND INFLUENCE OF CUSTOMARY LAW IN CONTEMPORARY NIGERIAN SOCIETY

Customary law in Nigeria continues to be a significant legal force, particularly in personal and community matters, despite the influence of English common law and statutory law. It is deeply intertwined with the social fabric of Nigerian society, influencing areas like marriage, inheritance, land tenure, and chieftaincy affairs. While some people argue that customary law should be codified to enhance its clarity and uniformity, others emphasise its organic nature and connection to cultural practices.^[16] Even after a customary law has been proven to be part of the custom of a group of people, it is not always applicable. For instance, customary law is not applicable in criminal cases as long as it is not contained in any written law, as stated by the constitution.^[17] In addition to this, the laws providing for the application of customary law also provide that customary law must not be repugnant to natural justice, equity and good conscience, and must not be incompatible either directly or by implication with any law in force.

AREAS OF APPLICATION OF CUSTOMARY LAW

Customary law continues to play a dominant role in specific areas of Nigerian law, particularly in:

1. Land Tenure Systems: In many rural and urban communities, land is held under customary tenure, with community leaders or family heads acting as custodians. The Land Use Act (1978) attempted to unify land tenure systems, but customary principles still regulate land transactions in many localities.^[18]
2. Marriage and Divorce: Customary law governs traditional marriages, with rules regarding bride price, consent, polygamy, and divorce. Customary law marriages are not necessarily monogamous, unlike marriages under the Marriage Act.
3. Inheritance and Succession: Rules of inheritance vary significantly across ethnic groups. For instance, the Igbo tradition has historically excluded female children from inheriting family property, a practice now under increasing judicial scrutiny for being discriminatory.
4. Dispute Resolution: Customary law provides informal and community-based mechanisms for dispute resolution. These systems are faster, less costly, and culturally acceptable, especially in rural settings.

CONSTITUTIONAL AND JUDICIAL RECOGNITION OF CUSTOMARY LAW

Customary law is recognised by the 1999 Constitution of the Federal Republic of Nigeria. Specifically, Section 318(1) defines customary law as the “rule of conduct which is applicable to a particular community in Nigeria” and is accepted as binding within that community. This legal backing ensures that customary law remains a vital part of Nigeria’s legal landscape.^[19] Furthermore, the recognition of customary law within the Nigerian legal system is enshrined in Section 18(3) of the Evidence Act, which acknowledges that customary law is applicable in cases where it is not repugnant to natural justice, equity, and good conscience, and further adds that customary law should not be contrary to public policy if it is to be applied. The three conditions, as follows, are conditions which must be fulfilled before customary law is applicable.^[20] Before a court of law considers the enforceability of customary law, the alleged customary law must be proven to exist by the party who relies on it. The law has established two methods of proving the existence of customary law, which are:

1. Judicial notice: A party who wishes the court to recognise and enforce a particular customary law may request the court to take judicial notice of the law, instead of proving it as a fact. ^[21]Section 14(2) of the Evidence Act states that a custom may be judicially noticed by the court if it has been applied by a superior court or a court of co-ordinate jurisdiction in the same area, to the extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon that custom as binding in relation to circumstances similar to those under consideration. There have been questions over how many times a customary law must have been applied before it can be judicially noticed. While in Cole v. Akinyele^[22], the court took judicial notice of a customary law which had only been previously applied in the one case of Alake v. Pratt,^[23] another court held in Osinowo v. Fagbenro^[24] that one case alone of its application was not enough. The Supreme Court has settled this in the case of Romaine v. Romaine^[25] by stating that a custom can only be judicially noticed after frequent use in several cases, and not in one case alone. As to the geographical location, the cases being relied upon for the custom to be judicially noticed must be from areas which share a common custom with the same area in question.^[26]
2. Proving Customary Law as a Fact: Section 18(1)19^[27] provides that, where on the other hand, a custom cannot be established as one judicially noticed, it shall be proved as a fact. This position enjoys judicial support in Ojiogu v. Ojiogu^[28], the Supreme Court held per Onnoghen JSC thus: ‘’It is trite law that customary law is a question of fact which must be proved or established by evidence.” Again, in Ogene v Ogene,^[29] the court affirms that: Customary law or native law and customs are questions of fact which must be proved by evidence if judicial notice is not available through decided cases of superior courts.

CONFLICTS BETWEEN CUSTOMARY AND STATUTORY LAW

One of the significant challenges of customary law is its variability across different communities. What is acceptable in one ethnic group may not be so in another, leading to complexities in its application.^[30] Additionally, conflicts often arise between customary law and statutory law, particularly in areas where customary practices are deemed repugnant to modern values, such as gender equality.^[31] The repugnancy doctrine, which requires that customary law must not be contrary to natural justice, equity, and good conscience, often serves as a check against such practices.^[32] Moreover, the issue of proof is a notable challenge in the application of customary law. According to the Evidence Act, customary law must be proved by evidence, unless it is a matter of common knowledge within the community. This requirement often complicates legal proceedings, as proving the existence and application of a specific custom can be difficult.

CONCLUSION

Customary law remains a vital part of Nigeria’s legal system, particularly in personal and communal matters. It serves not only as a regulatory framework for indigenous communities but also as an expression of their values, traditions, and worldview. However, in its current form, customary law is fraught with limitations; its unwritten nature, internal inconsistencies, and conflicts with constitutional human rights standards have hindered its full integration into the national legal system. As Nigeria continues to modernise and democratise its institutions, the challenge is how to balance respect for cultural diversity with the imperatives of constitutionalism, human rights, and the rule of law. Customary law must evolve to reflect contemporary social realities while retaining its indigenous character.

RECOMMENDATIONS

1. Codification of Customary Laws: There is a need to systematically document and codify major customary laws across ethnic groups to enhance clarity, consistency, and accessibility.

2. Abolition of Discriminatory Customs: Customary laws that infringe on constitutional rights, particularly those that discriminate based on gender or social status, should be explicitly declared null and void through legislative and judicial actions.

3. Customary Law Reform Commissions: The Government should establish independent commissions at the federal and state levels to review, revise, and harmonise customary laws with national and international human rights standards.

4. Public Legal Education: Citizens should be educated about their rights under both customary and statutory laws to empower them to challenge oppressive norms.

5. Training for Judges and Legal Practitioners: Legal education and judicial training should include modules on customary law to enhance understanding and ensure informed decisions.

REFERENCE

1. Akinlawon & Ajomo, ‘The Role of Customary Law in the Nigerian Legal System’ (2025) 0https://akinlawonajomo.org/the-role-of-customary-law-in-the-nigerian-legal-system/#:~:text=Customary%20law%20remains%20an%20integral,and%20communal%20matters%20across%20Nigeria accessed 18^th June, 2025. ↑
2. Ibid. ↑
3. Matthew Enya Nwocha, ‘Customary Law, Social Development and Administration of Justice in Nigeria’ (2016) Vol.7, No.4, Beijing Law Review ↑
4. Ibid. ↑
5. Learn Nigerian Law, ‘Customary Law’ (2025) https://www.learnnigerianlaw.com/learn/legal-system/customarylaw accessed June, 2025. ↑
6. (1990) 1 NWLR (pt. 137) 182 at 207; see also PAM V. GWOM (2000) LPELR-2896(SC) (PP. 16 PARAS. A) ↑
7. Kharie Zaidan v. Fatima Khalil Mohssen (1973) 11 SC 1 at 21 and Ohai v. Akpoemonye (1999) 1 NWLR (Pt. 588) 521.”Per OGWUEGBU ,JSC (P. 16, paras. A-D) ↑
8. NWAIGWE V. OKERE (2008) ALL FWLR (PT. 431) 843 at 870. TOBI J.S.C ↑
9. EJIKE & ANOR V. ONUZULIKE & ORS (2013) LPELR-21220(CA) (PP. 30-31 PARAS. E) ↑
10. MOSES J.E, ‘AN EVALUATION OF THE CONCEPT OF ENFORCEABILITY OF CUSTOMARY

    LAW AND ITS EFFECT IN NIGERIAN ADMINISTRATION OF JUSTICE’ (2021) Vol.4 MUNFOLLJ 99-100 ↑

11. (1909) 1 N.L.R. 100 ↑
12. [1931] 10 N.L.R. 36 at 51 ↑
13. Ibid. ↑
14. (2008) 35 NSCQR 570 ↑
15. Hilary N, ‘The Subjection of Customary Laws to Repugnancy Tests by Nigerian Courts: The Need to

    Broaden the Horizon’ (2017) Vol.3, International Journal of Law, P. 70 ↑

16. Mojisola E & Edidiong N, ‘The Distinction Between Custom and Customary Law: Division without

    Partition’ (2015) Vol. 2 International Journal of Law and Legal Jurisprudence Studies, P.13, ↑

17. section 36(12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) ↑
18. Remigius, N. N, ‘The Dynamics and Genius of Nigeria’s Indigenous Legal Order’ (2002), Vol.1 Spring Indigenous Law, P. 153 ↑
19. Section 318(1) CFRN 1999 ↑
20. Section 18(3) of the Evidence Act 2011, Cap. E14, LFN., 2004 (as amended 2023) ↑
21. Section 16(1) & (2)15 EA 2011 as amended 2023. ↑
22. [1960] 5. F.S.C. 84 ↑
23. (1955) 15 W.A.C.A. 20 ↑
24. (1954) 21 NLR 3 ↑
25. (2020) 5D18-2521 LLJRC-SC ↑
26. Taiwo v. Dosunmu (1966) NMLR 94 ↑
27. Section 18(1)19 EA 2011 ↑
28. (2010) LPELR-2377, P. 31, Para. G ↑
29. (2008) 2 NWLR (Pt. 1070) 29 at P. 48 ↑
30. Taiwo, E.A, ‘Repugnancy Clause and Its Impact On Customary Law: Comparing the South African and

    Nigerian Positions- Some Lessons for Nigeria’ (2009) Vol.34, Journal for Juridical Science, P. 90. ↑

31. Hilary N, ‘The Subjection of Customary Laws to Repugnancy Tests by Nigerian Courts: The Need to

    Broaden the Horizon’ (2017) Vol.3, International Journal of Law, P. 70 ↑

32. Igwe O.W & Ogolo M.D, ‘Repugnancy Test and Customary Criminal Law in Nigeria: A Time for

    Re-assessing Content and Relevance’ (2017) Vol.3, No.3, Donnish Journal of Law and Conflict Resolution, P. 035 ↑