UNIT 6

HISTORICAL BACKGROUND

The Nigerian legal system is an amalgamation of various laws derived from indigenous customs, Islamic law, and received English law. The historical development of Nigerian law can be traced through three significant periods: pre-colonial, colonial, and post-colonial.

1. Pre-colonial era: Before the advent of colonial rule, Nigeria was composed of various ethnic groups, each governed by its customary laws. These laws were unwritten and passed down orally through generations. They regulated various aspects of life, including marriage, succession, land tenure, and dispute resolution. Customary law was deeply rooted in the traditions, beliefs, and social structures of the people.
2. Colonial era: The establishment of British colonial rule in the 19th century marked a significant shift in the Nigerian legal landscape. The British introduced English common law, statutory law, and judicial precedents to Nigeria. This led to a dual legal system where customary law coexisted with received English law. See the Supreme Court Ordinance of 1863 which formalized the application of English law in the colony of Lagos, which later extended to other parts of Nigeria.
3. Post-colonial era: Following Nigeria's independence in 1960, the legal system retained its colonial heritage while incorporating indigenous laws. The Constitution of the Federal Republic of Nigeria (1963) recognized the continued application of customary law alongside statutory and common law. Subsequent constitutions and legal reforms have further refined the relationship between customary law and the formal legal system.

ESSENTIALS AND PROOF OF CUSTOMARY LAW

Customary law, to be enforceable in Nigerian courts, must meet certain criteria and be proven according to established legal standards. See the case of Oyewunmi v. Ogunesan (1990) 3 NWLR (Pt. 137) 182, where the Supreme Court held that for a custom to be judicially noticed, it must be so notorious that no reasonable person in the community would dispute it.
Essentials of Customary Law includes;

1. Acceptability: this is where customary law must be generally accepted and practiced by the community concerned. It should reflect the social norms and values of the people.
2. Reasonableness: this is where customary law must be reasonable and not repugnant to natural justice, equity, and good conscience. See section 18(3) of the Evidence Act 2011.
3. Consistency: this is where customary law must be consistent and not in conflict with statutory law or the Constitution. In cases of conflict, statutory law prevails.

Customary law, being unwritten, must be proven in court. Proof of Customary Law includes;

1. Oral evidence: this is where witnesses familiar with the customs can testify about the existence and content of the customary law.
2. Judicial notice: this is where courts can take judicial notice of well-established and recognized customs without requiring formal proof. However, this is limited to customs that are notorious and not in dispute.
3. Expert evidence: this is where experts in customary law, such as traditional rulers or scholars, may provide evidence regarding specific customs.

THE COLONIAL LEGAL SYSTEM

The colonial legal system introduced by the British in Nigeria had a profound impact on the country's legal development. These inlcudes;

1. Dual legal system: The British colonial administration implemented a dual legal system that allowed the coexistence of customary law and English law. This was necessary to administer justice in a culturally diverse society.
2. Supreme court ordinance of 1863: The Supreme Court Ordinance of 1863 established the first formal court system in Lagos, applying English common law, doctrines of equity, and statutes of general application as of January 1, 1900. This ordinance marked the beginning of a structured legal system in Nigeria.
3. Indirect rule: Under the policy of indirect rule, traditional rulers were empowered to administer justice according to customary law, subject to the oversight of colonial authorities. This approach aimed to respect indigenous institutions while integrating them into the colonial framework.
4. Customary courts: Customary courts were established to handle matters relating to customary law. These courts operated alongside magistrates' and high courts that applied English law. The Native Courts Ordinance of 1916 formalized the establishment and jurisdiction of customary courts.

CUSTOMARY AND ISLAMIC LAW COMPARED (DIFFERENCES)

Customary law and Islamic law are two significant sources of indigenous law in Nigeria. While they share some similarities, they also have distinct differences. See the case of Alkamawa v. Bello (1998) 6 NWLR (Pt. 552) 1, where the Supreme Court recognized the distinct nature of Islamic law and its application as a complete legal system within the framework of Nigeria's legal pluralism. They include the following;

1. Sources: where customary law is derived from the traditions, customs, and practices of various ethnic groups in Nigeria. It is unwritten and passed down orally. Islamic law, also known as Sharia, is derived from the Quran, Hadith (sayings and actions of Prophet Muhammad), Ijma (consensus), and Qiyas (analogy). It is a written legal system with codified rules.
2. Application: where customary law applies to personal matters such as marriage, inheritance, land tenure, and chieftaincy. Its application is limited to specific communities. Islamic law applies primarily to Muslims and covers a wide range of issues, including personal matters, criminal law, and commercial transactions. In Nigeria, its application is mostly limited to the northern states.
3. Modificaton: where customary law is flexible and can evolve with changes in social norms and values. Islamic law is rigid and based on divine injunctions, leaving little room for modification.
4. Proof: where customary law must be proven in court through oral evidence, expert testimony, or judicial notice. Islamic law is proven through religious texts and the opinions of Islamic jurists.

SIMILARITIES BETWEEN CUSTOMARY LAW AND ISLAMIC LAW

1. Personal law: Both customary and Islamic law primarily regulate personal law matters, such as marriage, divorce, inheritance, and family relations.
2. Community-based: Both legal systems are community-based and reflect the values and norms of the communities they serve.
3. Coexistence with statutory law: Both customary and Islamic law coexist with statutory law in Nigeria's plural legal system.

CONCLUSION

The Nigerian legal system's evolution reflects a complex interplay between indigenous customs, Islamic law, and received English law. Understanding the historical background, essentials and proof of customary law, the colonial legal system, and the comparison between customary and Islamic law is crucial for appreciating Nigeria's legal pluralism. These elements collectively shape the administration of justice and the legal landscape in Nigeria.