Download - Abyssinia Law

IOWA LAW REVIEW
he will be given the benefit of that custom. 157 Professor Harvey has
pointed out 58 that customary law must be viewed in the larger perspective
of the relations between traditional tribal institutions and
power centers of the new national state, and that in the new order
the center of activity in the creation and adaptation of norms will
be the national legislature. He also observed that since the adoption
of a republican form of government in Ghana, that part of the
legal order derived from indigenous sources has suffered continued
attrition in favor of legal norms received from nonindigenous (English)
sources and incorporated in a rapidly growing body of national
legislation.
In Nigeria, the approach has been to have customary law applied
in certain circumstances by all courts and to establish customary
courts in various regions, applying customary law in cases within
their jurisdiction.' 59 The criteria for the applicability of customary
law is substantially the same in all the regions, and it is broad. Customary
law may be applied in cases between natives or between a
native and non-native where it may appear to the court that substantial
injustice would be done to either party by a strict adherence
to the formal law. Customary law will not be applied if "repugnant
to natural justice, equity or good conscience" or incompatible with
existing legislation. A party who has agreed not to be bound by customary
law, either expressly or from the nature of the transaction,
cannot claim the benefit of such law. 160 ['Vol 53
www.abyssinialaw.com
There are also directions as
to what customary law shall be applied. The basic approach is the
same as that in Ghana, where the presumption is that the common law
is applicable, but in appropriate cases a party can claim the benefit of
customary law.
In the Sudan, customary law is made applicable in cases involving
succession, inheritance, wills, legacies, gifts, marriage, and family relations.
In such cases customary law is the only law to be applied.
This parallels a provision requiring the application of Mohammedan
law in such cases where the parties are Mohammedan. The customary
law must not be "contrary to justice, equity or good conscience," and
157 01ennu, supra note 125, at 34.
IG3 Harvey, supra note 53, at 601-03.
IGO In Northern Nigeria, which is predominantly Moslem, there are Moslem and
non-Moslem native courts and a Sharia Court of Appeal which hears appeals
from the Moslem Native Courts. A. ALLor, supra note 56, at 70-75. The customary
courts have jurisdiction for the most part over persons of African descent
provided that their mode of life is that of the general community. Id. at 55, 64,
71. The terminology varies from region to region, but there appears to be no
substantive difference. The discussion of customary law in Nigeria refers to the
situation as it existed prior to the political upheavals of 1966 and 1967.
1o Id. at 48.