What customary law means
Customary law is the body of rules a community accepts as binding on itself.
It is unwritten, it varies between communities, and it changes over time as practice changes. That last point matters: customary law is not frozen. Courts look at the custom as it is currently accepted and observed, not as it may have been described a century ago.
It is a genuine source of Nigerian law, applied by customary courts and by the higher courts where it is relevant, and it governs large areas of daily life: land held by families and communities, marriage and its dissolution, inheritance, chieftaincy, and many everyday transactions.
Islamic law operates alongside it in the states applying it, through the Sharia courts, and is a distinct system rather than a form of customary law.
What customary law is not is a free standing authority that overrides everything else. It applies subject to tests, and where it fails them it is not enforced.
How it is used
Three validity tests apply, and they are the reason customary law does not always prevail.
A custom must not be repugnant to natural justice, equity and good conscience. This is the test Nigerian courts have used to strike down customs that operate unjustly, particularly against women and children.
A custom must not be incompatible, directly or by implication, with any written law in force. Legislation prevails.
And a custom must not be contrary to public policy.
Proof is the other practical hurdle. A party relying on a custom must generally prove it by evidence, calling witnesses with knowledge of the community's practice, unless the custom has been so frequently proved in the courts that it can be judicially noticed.
That means asserting a custom is not enough. In a land case turning on the powers of a family head, or an inheritance dispute turning on a community's practice, the party relying on the custom has to establish it.
Key features
- Unwritten law accepted as binding by a particular community
- Varies between communities and evolves with practice
- Applied by customary courts and by higher courts where relevant
- Must not be repugnant to natural justice, equity and good conscience
- Must not be incompatible with written law or contrary to public policy
- Generally proved by evidence unless judicially noticed
How this works in Nigeria
The repugnancy test has done significant work, and two Supreme Court decisions are worth knowing.
In Ukeje v Ukeje the court held that a custom excluding a female child from inheriting her father's estate is inconsistent with the constitutional prohibition on discrimination and is void. Daughters inherit.
In Anekwe v Nweke the court condemned a custom disinheriting a widow who had no male child, holding it repugnant to natural justice, equity and good conscience.
Those decisions bind, and they are enforced by going to court. Many Nigerian families still distribute estates on the old assumptions, which means an entitled person may have to litigate to obtain what the law already gives them. A clearly drafted will avoids that argument entirely, which is one of the strongest practical reasons to make one.
In land, customary law governs family and community holdings, and the rules on who may sell are unforgiving. A sale by the family head with the consent of principal members is valid; without the head it is void; by the head alone it is voidable.
In marriage, customary marriage is a distinct system with its own requirements and its own route to dissolution through the customary courts, separate from a statutory marriage under the Marriage Act.
Customary law vs statute vs common law
Three sources of Nigerian law, applying together.
Statute is written law made by the National Assembly or a State House of Assembly. It prevails over customary law where the two are incompatible.
The received common law and doctrines of equity, inherited and developed by Nigerian courts, govern contract, tort and much of commercial law, and are found in decided cases.
Customary law is the unwritten law of communities, applied subject to the repugnancy, incompatibility and public policy tests, and generally requiring proof.
Islamic law operates as a distinct system in the states applying it, particularly in personal law matters, through the Sharia courts.
Which applies to a given question depends on the subject matter and on the parties. Family land is customary. A supply contract is common law and statute. A statutory marriage is governed by the Matrimonial Causes Act. Nigerians frequently hold interests governed by more than one at the same time.
Limits and risks
Proof is the practical limitation. A custom that cannot be established by evidence cannot be applied, and communities frequently disagree internally about what their custom actually is.
Variation between communities means there is no single customary law, so a rule established for one community does not decide a case about another.
The validity tests cut down customs that are genuinely practised, which produces a gap between what a community does and what a court will enforce.
And enforcement of the court's position is slow. Decisions protecting daughters and widows are binding, but the family that ignores them forces the entitled person into litigation they may not be able to afford.
Worth knowing
Do not rely on custom to protect a family member you care about. Write a will. The Supreme Court has struck down customs excluding daughters and widows, but enforcing that means going to court, and a properly drafted will removes the argument before it starts.
Questions people ask
What is customary law?
The unwritten law of a particular community, accepted as binding by its members. It is a genuine source of Nigerian law and governs much of family land, customary marriage, inheritance and chieftaincy.
When will a court refuse to apply a custom?
Where it is repugnant to natural justice, equity and good conscience, where it is incompatible with written law, or where it is contrary to public policy. Those three tests are what limit customary law.
Can a daughter inherit under customary law?
Yes. In Ukeje v Ukeje the Supreme Court held that a custom excluding a female child from inheriting is unconstitutional and void, and that decision binds.
Can a widow be disinherited?
No. In Anekwe v Nweke the Supreme Court held a custom disinheriting a widow to be repugnant to natural justice, equity and good conscience. Enforcing it may still require going to court.
How is a custom proved in court?
Generally by evidence from witnesses with knowledge of the community's practice, unless the custom has been so frequently proved in the courts that it can be judicially noticed. Asserting it is not enough.
Is Islamic law a form of customary law?
No. It operates as a distinct system in the states applying it, particularly in personal law matters, through the Sharia courts, with its own rules on marriage, dissolution and inheritance.