Customary law and its roles in businesses and commercial activities in Nigeria

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Nov 24, 2024

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BAYERO UNIVERSITY KANO FACULTY OF MANAGEMENT SCIENCES DEPT: BUSINESS ADMINISTRATION COURSE TITLE BUSINESS LAW COURSE CODE BUS 2205 ASSIGNMENT BY NAME: MUSA FAROUK ABDULLAHI REG NO: FMS/20/BUS/00553 QUESTION DEFINE CUSTOMARY LAW AND EXPLAIN ITS ROLES IN THE DEVELOPMENT OF BUSINESS AND COMMERCIAL ACTIVITIES 0

Customary Law Customary law refers to the laws which are derived from the customs of the people. While there is no universal definition for it, attempts have been made to decipher its nature. It has been described as a body of customs which regulates the kinds of relationships between members of a community in a traditional setting. The Customary Courts of Anambra State defined it as: A rule or body of rules regulating rights and imposing correlative duties, being a rule or body of rules which obtains and is fortified by established usage and which is appropriate and applicable to any particular cause, matter, dispute, issue or question It is the oldest source of law which exists, existing before Nigeria was formed and even before the British arrived. For centuries, customary laws were applicable across the various territories that made up Nigeria. Customary law continues to be applicable, although with some limitations, and it is only applicable in civil matters as section 36(12) of the constitution states that all criminal laws should be written and customary laws are mostly unwritten. There is no uniform customary law in Nigeria as even amongst communities of the same ethnic group, the laws might vary from one community to another. It is in light of this that the Supreme Court warned in Taiwo v. Dosunmu that whatever similarities might have been found between one area and another, the court can only proceed step by step and consider every alleged custom as the occasion arises. There has been dispute as to the status of Islamic law as customary law. While some are of the view that Islamic law is not customary law and is only regarded as customary law for convenience, others believe that customary law may either be ethnic which refers to the indigenous customary laws or it may be non-ethnic which is the Islamic law. One thing is clear, that Islamic law is different from the indigenous customary laws. It is written while the others are 1

not, it requires no proof before a court, etc. It is the Maliki school of the Moslem law which is in force in the Northern part of Nigeria. Characteristics of customary law Customary laws have some unique characteristics which set them out as different from other sources of law. Some of them are as follows. 1. Customary law does not owe its existence to the enactment of a sovereign or a legislature. It develops from the culture, customs, practices and tradition of the people and becomes binding upon them. For a law to qualify as customary law, it must be accepted by most of the members of the society if not all. It is a symbol of the behaviouralistic pattern of the people who are guided by the laws. 2. Customary laws are dynamic in nature, continuously changing to suit the needs of the community as the community changes and its needs changes. The Supreme Court stated in Agbai v. Okogbue that “Customary laws were formulated from time immemorial. As our society advances, they are removed from its pristine social ecology. They meet situations which were inconceivable at the time they took root.” An example of this is that while transactions in writing were formally thought to exclude customary law since the community at that time was largely illiterate, the court still applied customary law in Rotimi v. Savage. 3. Customary laws are largely unwritten, excluding Muslim law. They are gotten from the practice of the people and are often ascertained through witnesses from the community. 2

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Muslim customary law, unlike the indigenous customary law, is largely written, more rigid and uniform and based on the Islamic faith. It is the Maliki school by Imam Malik of Medina that is prevalent in the northern part of Nigeria. The Islamic law is derived from four major sources. In Nigeria, when a person dies and leaves property, the estate of that person is given to another person or people as their inheritance. Who inherits this property is decided in different ways. A person can decide before he or she dies who should inherit his property; and under the English law, this is written down and executed in a document called a Will. But where the deceased failed to execute a valid Will, other laws are used to decide who gets the property. Among the Hausa, inheritance or succession is normally determined by the customary rules the deceased person lived by during his lifetime. If the deceased were a Muslim during his lifetime, the rules of succession most likely to govern the distribution of his estate would be as prescribed by Islamic Law, Shari’ah. If otherwise he is a non-Muslim, the customary law principles of his indigene-ship would apply. Hence, whether or not the deceased Hausa man or woman resides in Hausaland, hardly are his property distributed in accordance to lex situs (the law of where the property is situated), but by his personally law which is culturally or religiously determined. 3

What is Intestate Succession? Intestate succession may be defined as the inheritance of an ancestor’s property according to the laws of Descent and Distribution that are applied when the deceased has not executed a valid will. It consists of the applicable rules employed in distributing the estate of the deceased when the person dies without leaving a valid will. The beneficiaries of such distribution are mutatis mutandis the spouse and issues or progeny, as well as other surviving relatives subject to customary rules or state laws. This raises the question: where the deceased left no valid will for reference, who are the people that should be the legitimate heirs of his/her estate? The Hausa are culturally and historically closest to the Fulani, the Zarma and Songhai (in Tillabery, Tahoua and Dosso in Niger); the Kanuri and Shuwa Arab (in Chad, Sudan and northeastern Nigeria); as well as the Tuareg (in Agadez, Maradi and Zinder), among others. Migrants from these areas were introducing Islam to many of the Hausa by the 14 th Century, although Islam itself has had a presence in Hausaland as early as the 11 th Century. By the 14 th century, Islam was becoming widespread in Hausaland, as Islamic scholars and traders from Mali and scholars and traders from the Maghreb brought the religion with them. However, from 1804-1808, the Fulani invaded the Hausa states, starting with Gobir under the leadership of Sheikh Usman Dan Fodio, who declared Jihad on the traditional Habe dynasty kings for their alleged greed, paganism, injustices against the peasant class, use of heavy taxation and violation of the standards of Sharia law. 4

Thus, although the rules of intestacy among a preponderant number of Hausa people are determined by Islamic Law or Shari’ah in light of the overwhelming influence of Islam in Hausaland; pockets of non-Muslim communities are to be found in Hausaland, which have managed to remain redoubts of Animism and Christianity. These communities have, in turn, been able to preserve rules of intestacy that are non-Islamic or indigenous to them. Native Indigenous Intestacy System Generally, among the Hausa, the eldest son inherits his deceased father’s cattle, the main asset in those days, out of which he makes presents of some to his younger brothers according to their needs. For Hausa Communities, which are not subject to Islamic law, the commonly practiced system of succession is through the rule of primogeniture, which can be defined as the right of the eldest surviving son to succeed his father in the headship of the family automatically and arises from the fact of seniority. Only the father has the right to deprive the eldest son of this right by a valid direction made with the aim of ensuring that the affairs of the family are properly managed by a person qualified on grounds of intelligence and qualification. In the absence of such direction the right of the eldest son cannot be taken away without his consent. It is generally accepted that the first son which is also the heir to the deceased person’s property and his brothers inherit the deceased’s property. 5

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The roles of development of businesses and commercial activities in Nigeria in regards to customary law The roles of customary law in the development of businesses and commercial activities is a complex topic that has been studied by scholars in various fields. Customary law is a set of unwritten rules and practices that are passed down from generation to generation within a particular community or society. It is often used to resolve disputes, regulate social behavior, and manage natural resources. In the context of business and commercial activities, customary law can play a significant role in shaping the legal framework that governs these activities. For example, customary law can provide a basis for resolving disputes between businesses and individuals or between businesses themselves. It can also be used to regulate the use of natural resources, such as land, water, and forests, which are often critical to the success of businesses in rural areas. However, customary law can also pose challenges to the development of businesses and commercial activities. In some cases, customary law may conflict with national or international laws and regulations, creating uncertainty and legal risks for businesses. Additionally, customary law may be biased against certain groups or individuals, such as women or minorities, which can limit their participation in business and commercial activities. These roles can also be broken down into multiple points or parts, each affecting the development and growth of businesses and commercial activities which also has positive or negative influences on them depending on the circumstances. 6

They are: ● Property Rights and Transactions: Customary law in Nigeria forms the backbone of property rights and land transactions. It provides a structured framework for determining land ownership, land use, and property transfer. This often includes well-established customary practices like land allocation, inheritance rules, and land tenure systems.In the realm of property rights and transactions, customary law offers stability and predictability. Local communities have an in-depth understanding of these customary rules, which can streamline property acquisitions for businesses. Such familiarity can expedite negotiations and foster trust among all parties involved. However, customary land tenure systems can pose challenges for outsiders. The lack of formal documentation and standardized procedures can lead to misunderstandings and conflicts over land ownership. Businesses unfamiliar with local customs may encounter difficulties securing clear and undisputed property rights, potentially resulting in legal disputes and delays. ● Regulatory Compliance: Customary law and regulatory compliance in Nigeria are two interconnected threads in the tapestry of business operations. Their intersection demands meticulous navigation, as it involves aligning with both and customary laws. On the positive side, customary law can provide invaluable insights into local regulatory requirements and expectations. Consulting with local leaders and authorities who 7

understand the intricate dance between customary and statutory regulations can be a strategic move. This collaborative approach facilitates the acquisition of permits, licenses, and consents necessary for business operations. This dual compliance approach not only ensures the smooth flow of business activities but also showcases respect for local customs and traditions. It can foster goodwill among local communities, positioning businesses as responsible and culturally sensitive entities. However, the intricacies of regulatory compliance under customary law can be a labyrinth. The intersection of different legal frameworks may give rise to conflicting requirements and complex demands. The inability to reconcile these differences can lead to regulatory challenges, legal disputes, and operational bottlenecks. Expert legal guidance that skillfully navigates the bridge between customary and statutory laws is often an essential investment for businesses. It acts as the compass that charts a course through the often turbulent waters of regulatory compliance, ensuring that businesses meet their legal obligations while maintaining respect for local customs. ● Cultural Diversity: Nigeria's cultural diversity is an intricate tapestry shaped by customary law, presenting both an exquisite mosaic of opportunities and the delicate challenge of cultural sensitivity. On the positive side, embracing this diversity can be a strategic advantage. Understanding and respecting regional variations in customs and traditions allows businesses to tailor their products, services, and marketing strategies to cater to diverse consumer 8

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preferences. This cultural adaptation fosters positive brand perception, customer loyalty, and a deeper connection with local markets. Effective engagement with local customs and traditions can be a bridge that unites businesses with communities across Nigeria. It signifies more than just market adaptation; it symbolizes a commitment to the ethos and values of the local culture.However, the management of cultural diversity is not without its intricacies. Businesses must be adept in navigating the multifaceted landscape of Nigeria's customs, languages, and traditions. Failure to do so can lead to cultural insensitivity, alienation, and, ultimately, market rejection. Striking the right balance between cultural adaptation and maintaining consistent business operations across diverse regions is a formidable challenge. It requires a profound understanding of the local context and a willingness to invest time and resources in adapting business practices to the rich tapestry of Nigerian culture. ● Resource Management and Access: Customary law has a profound impact on resource management and access, particularly in sectors like agriculture, mining, and forestry. Customary norms dictate how land and resources are allocated, used, and conserved. This can provide businesses with critical access to resources while promoting sustainable practices. On the positive side, resource allocation based on customary practices can be efficient and ensure that resources are utilized in ways that benefit both businesses and local 9

communities. Customary norms often include mechanisms for equitable sharing of resources, which can foster cooperation and reduce conflicts. However, resource allocation guided by customary law can sometimes be opaque and influenced by local power dynamics. This lack of transparency can result in disputes and challenges in securing resource access, especially for businesses that are not well-versed in local customs. Effective engagement with local communities and leaders is essential to ensure equitable access and minimize conflicts. ● Contractual Agreements: In the realm of contractual agreements, customary law casts its shadow, inviting businesses to integrate local customs and traditions into their written commitments. Here, the legal fabric weaves together the formality of contracts with the richness of tradition.This integration has the power to make contracts more than just legal documents; it makes them cultural exchanges. By fusing customary practices and expectations into contracts, businesses build bridges of trust with their partners. These contracts resonate with the spirit of local customs, creating a deeper sense of reliability and commitment. The positivity here is palpable. Businesses can align their operations with local values, fostering partnerships based on mutual respect. The acceptance of these culturally sensitive agreements can lubricate the wheels of commerce, leading to more harmonious relationships and the seamless execution of contracts.However, the art of merging 10

customary practices with formal contracts is no simple feat. It requires a delicate balancing act, as customary law and statutory regulations often traverse different paths. The intersection of these legal realms can create a minefield of ambiguity and potential conflicts.Businesses must tread this path with precision, ensuring that their contracts are not just culturally sensitive but legally sound. A misstep can lead to disputes that threaten to unravel the very partnerships they sought to nurture. It is a high-wire act, where the need for meticulous drafting and legal expertise is as vital as cultural understanding. In summary, customary law in Nigeria is not a mere backdrop to business operations; it is an intricate thread woven throughout the fabric of commerce. It brings stability, cultural relevance, and access to resources, yet it introduces complexity, potential conflicts, and the need for meticulous navigation. Successful businesses in Nigeria must be masterful in leveraging the positive aspects of customary law while deftly mitigating its negative influences to thrive in this richly diverse and dynamic market. 11

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REFERENCES ● Learning Nigerian Law https://www.learnnigerianlaw.com/learn/legal-system/customarylaw ● Customary Law, Social Development and Administration of Justice in Nigeria Matthew Enya Nwocha https://www.scirp.org/journal/paperinformation.aspx?paperid=73207 ● The role of customary law in IWRM (A2.03) - GWP - Global Water Partnership. (n.d.). Retrieved October 5, 2023, from https://www.gwp.org/en/learn/iwrm-toolbox/The- Enabling-Environment/Legal-Framework/The_role_of_customary_law_in_iwrm/ ● India’s economic development given development in the law. (2019, May 22). Retrieved October 5, 2023, from https://blog.ipleaders.in/indias-economic-development-given- development-law/ ● The Role of Customary Law in Sustainable Development. (n.d.). Retrieved October 5, 2023, from https://www.cambridge.org/core/books/role-of-customary-law-in-sustainable- development/30FF6A3C3F5F43129AB43B1728991036 12

Customary law and its roles in businesses and commercial activities in Nigeria

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