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Background to the Study
Customary law is a simple system of law which is not frozen or rigid nor enacted by any legislation, but is one has its roots from the people and develops from time to time as the society progresses. It is said to a particular way of behavior which because it has long been established among members of a community reflecting their common consciences and beliefs of which they have come to accept as having the force of law and binding on them. It is a law which is largely unwritten, flexible and must be in existence at a time alleged by a party.
Though customary law is such a law which is subject to the validity test which authenticate and makes it applicable in court, until it passes that test, it cannot be said to be law.
The Impact of the validity test on customary laws of every community in Nigeria cannot be overemphasized in the sense that, it tends to abolish the customs which are seen as barbaric and uncivilized. Its impact can be so seen on the Tiv customary practices and laws in which this research intends to study. This impact can be felt in the Tiv customary practices of marriage, inheritance and succession and how it altered and replaced the customs that were seen as uncivilized.
However, customary law is seen as a matter of fact which its proof must be evidenced either by calling witnesses who are versed in the customs or by tendering of books and manuscript or by assessors. If a party alleges a customs, he must proof its existence for it to be applied. Therefore, customary law which is a mirror of usage which must be validated by the test in order for it to be enforceable and applicable and seen as binding on the people.
1.2 Statement of the Problem
This work looks at Customary Law, nature and its validity as a mechanism set to ascertain the general standard of a customary law in Nigeria. The work will lay emphasis basically on the practices of the Tiv people as it is impacted by the application of the validity test.
This does not mean the wholistic approach in assessment of the doctrine will not be discussed. The work will touch on the doctrine generally and letter emphasis raise on its impact on the Tiv customary practices been affected by the validity test. To do this end, certain instances and example will be identified on how the practice has been impacted by the application of test.
In other for this doctrine to work and achieve its purpose generally, various enactment were made to give effect an example of such enactments was the supreme court ordinance No 4 of 1986, section 19 which provided that:
Nothing in this ordinance shall deprive the Supreme Court of the right to observe and enforce the observance or shall deprive any law or custom existing in the said colony and territory to this jurisdiction, such law and customs not being repugnant to natural justice, equity and good conscience, or incompatible either directly or by necessary implication with any enactment of legislation.
By this section stated above, therefore, it means that where a custom does not satisfy the aforementioned condition it shall be described as barbaric and be thrown to the garbage. One of the custom declared repugnant was the African tradition, where a woman is considered to be married to a man who has paid bride on her even when in reality she is separated from him and married to another man.
A woman has been betrothed to a man when she was a child, she later deserted him and married another man with whom she had a child as described to belong to the first husband, like in Efik customary law was considered the legitimate father of the child. The custom was rejected by the court because they considered it to be repugnant to natural justice, equity and good conscience.
The doctrine from the above section and judicial view means that, its aim is to eradicate the crude method of administration of justice by customary law which was found to be barbaric. It was intended to invalidate barbarous custom considered uncivilized. The emphasis here is on the impact of the doctrine on Tiv customary law practices like marriage, bride price, succession.
This research seeks to give clarity to the questions of customary law such as:
What is the nature of customary law?
How it is applied to customary law?
What is the nature and impact of the validity test on customary law in the Nigerian Legal system?
How can a Custom be proved?
What is the impact of the validity test on the Tiv customary law?
This research will look to give a distilled explanation to the questions stated above in other to fully appreciate the impact of the validity of the customary practices in Nigeria.
1.3 Objectives of the Study
The main aim of this research is to look most importantly on the Tiv customary law, having given certainty to the extent of its applicability by the validity or its recognition by law. How relevant is the test in customary practices and how its altered and replaced barbaric customs by way of it been repugnant to natural justice, equity and good conscience, it incompatibility either directly or by implication with an existing law at the time being in force and the test of public policy.
This research will, however, look to ascertain the following:
The impact of the validity test on Tiv customary Practices.
Inheritance under the Tiv customary law.
The place of women under intestate succession in the Tiv native law and custom.
Marriage and divorce under the Tiv custom.
The objective is to further ascertain the applicability of the impact of validity test on Tiv customary law and its effectiveness.
1.4 Scope of the Study
This research is concern most basically with the customary practices of the Tiv people of Benue state and the effect of the validity test on their customary law. This does not mean instances and examples will not be made to some customary practices of other ethnic groups in the country. Certainly, customary way of life of the Tiv people will be put to appraisal and their prior position before the validity test and the positive suggestion to where there are short comings.
This study cannot be exhausted in this singular work basically because the custom is dynamic. It is because of the reason that limitation or restraint is on the Tiv Customary Practice.
1.5 Research Methodology
This research method for the work is secondary. This is because, int ermention will be gathered from textbooks, article published in journals and other professional presentation. Review will also be on other primary sources such as Act of National Assembly and other subsidiary enactments. Relevance will be placed on decided cases of Tiv Customary Law and a reflection of other customary law in Nigeria.
1.6 Organizational Layout
This research work consist of five chapters namely; chapter one, two, three, four and five.
Chapter one consists of the background to the study, statement of the problem, objectives of the study, scope of the study, research methodology and organizational layout.
Chapter two which is Customary Practices and the Law in Nigeria consists of the nature of customary law, customary practices and law in Nigeria, definition of terms, characteristics of customary law, universality of application, ascertainment of customary and applicability of customary law.
Chapter three which is a proof of customary law consists of; the proof of customary, proof before customary and area courts, proof before courts other than customary and area court, proof by judicial notice, judicial notice in customary court, proof by evidence, proof by calling witnesses, proof by use of books and manuscript and proof by assessors .
Chapter four which will state how customary law received recognition, validity test, effect of validity test and their application of the Tiv customary law, customary marriage amongst the Tiv, Divorce under Tiv native law and custom and inheritance under Tiv native law and customs.
While chapter five will consists of conclusion, summary, recommendations and findings.
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