Seite - 42 - in Austrian Law Journal, Band 1/2017

ALJ 1/2017 Lambert H.B. Asemota 42 Part B I. Introduction Meaning and advent of customary law There is indeed much controversy as to what amounts to customary law. However, it should be emphasised that the phrase “customary law” was later understood as what used to be the cus- toms of the indigenous peoples of (perhaps) the whole of Africa. It is also variously referred to as tradition, custom or culture. However, it seems that one is the variant of the other, as they tend to dovetail into each other. Anthropologist Sally Engle Merry writes that culture “(...) seems to be the equivalent of traditions, customs and religion.”5 Similarly, according to another definition, tradi- tion is “(...) a belief, custom or way of doing something that has existed for a long time among a particular group of people.”6 Whilst the existence of these customs cannot be contested, their sources can- not be easily traced. And as there are quite a number of them, so are there a number of sources. Nevertheless, oral history traces them back to pre-historic times. Therefore, they are known to have been handed down from one generation to another. Lon L. Fuller observed in 1968 about custom however that “though we may be able to describe in general the class of persons among whom a custom has come to prevail as a standard of conduct, it has no definite author; there is no person or defined human agency we can praise or blame for its being good or bad.”7 As a result of its complexity, particularly as this article pertains to the Nigerian legal system, perhaps the most expedient definition has been prescribed by the Nigerian Supreme Court in the case of Zaidan v. Mohsen: ”(…) any system of law not being the common law and not being a law enacted by any com- petent legislature in Nigeria but which is enforceable and binding within Nigeria as between the parties subject to its sway.”8 In this connection, it is important to note that there is a great difference between Sharia and customary law. And with regard to that differentiation, let me emphasise therefore, that, although Sharia law is a written law, which is distinct, by normative nuances, from customary law,9 in this article, the author craves the indulgence of the readers for the loose conception of customary law in a way that subsumes Sharia law under it. Even though the dichotomy between them may be divulged later in this article, he has decided to begin by adopting the old methodology of con- stricting both into customary law for reasons of exigency. In that context, Kolajo, former Chief Customary Court President, observes that ”(...) only by virtue of some specific provisions in a law such as section 2 of the High Court Law Cap. 49 Laws of Northern Nigeria, 1963 which provides that native law and custom includes Moslem law that Moslem law is regarded as native law and custom. It is in truth and reality not customary law.”10 How those customs of old came to be categorised as customary law is a matter for general de- bate and therefore outside the scope of this paper. However, one account given by Legal Research 5 Sally Engle Merry, Human Rights Law and the Demonization of Culture (And Anthropology Along the Way), 26 POLAR 55, 61 (2003). 6 OXFORD ADVANCED LEARNER’S DICTIONARY (7th ed. 2005). 7 LON L. FULLER, ANATOMY OF THE LAW 71 (1968). 8 Zaidan v. Mohssen, [1973] 11 S.C. 1 (Nigeria) available at http://www.lawpavilionpersonal.com/lawreportsummary.jsp? suite=olabisi@9thfloor&pk=SC.52/1973&apk=11911 (last visited Mar. 27, 2017). 9 Hence, section 2, Plateau State Customary Court of Appeal Law [1979] with a slight deviation, provides that it is a ”(...) rule of conduct which governs legal relationships as established by custom and usage and not forming part of the common law of England…but does not include Islamic personal law.” 10 A.A. KOLAJO, CUSTOMARY LAW IN NIGERIA THROUGH THE CASES, 2 (2000).