Existing Laws and Customs in Nigerian Law: An Analysis of Section 315 of the Constitution and Section 258 of the Evidence Act.

Introduction

1. Section 315 of the 1999 Constitution: The Life of “Existing Laws”

When Nigeria adopted the 1999 Constitution, it did not start with a legal blank page. There were laws in force before May 29, 1999, Acts of Parliament, Decrees, Edicts, bye-laws, and in many cases, customary rules codified in statutes.

Section 315 ensures these “existing laws” continue to operate, but with two important caveats:

1. They must be read with modifications, so they align with the spirit and letter of the Constitution.

2. They remain subject to constitutional supremacy, if an existing law conflicts with any constitutional provision, the Constitution prevails.

Section 315 also allows the President, Governors, or designated revisers to make textual changes to such laws so they conform to constitutional requirements.

Practical example:
A customary marriage law existing before 1999 continues in force but must be interpreted in a way that respects constitutional principles, for instance, it cannot validly enforce gender discrimination contrary to Section 42.

2. Section 258 Evidence Act: Recognizing “Custom” in the Eyes of the Law

Although Section 258 of the Evidence Act 2011 is primarily a definitions section, it gives “custom” a legal identity.
It defines custom as:

“A rule which, in a particular district, has obtained the force of law and is binding on those within its scope, provided it is not contrary to public policy and is consistent with written law.”

Educational Points about This Definition:

1. Custom Is Not Mere Habit
In law, custom must have the force of law, meaning the community recognizes it as binding, not optional.

2. Custom Must Pass the Legal Test
For a custom to be recognized in court, it must:

■ Be reasonable and not oppressive.
■ Not conflict with statutory law or the Constitution.
■ Be proved by evidence unless it has been judicially noticed (recognized in prior cases).

3. Judicial Notice of Custom
If a court of competent jurisdiction has recognized a custom in previous cases, another court in the same area may take judicial notice of it without requiring fresh proof.

4. Why the Evidence Act Includes This Definition
The Evidence Act is the courtroom’s rulebook. By defining “custom,” Section 258 ensures judges and lawyers have a common standard for determining when a traditional rule is legally relevant and enforceable.

3. The Importance of Recognizing Custom in Modern Law

Preserves Cultural Heritage
Customs are a reflection of a community’s identity. Section 258 keeps the door open for Nigeria’s rich traditions to remain relevant in a formal legal system.

Bridges the Gap Between Statute and Society
Not every social norm is codified in legislation. Recognizing custom allows law to address situations where formal statutes are silent.

Protects Against Cultural Misuse
By subjecting custom to constitutional limits, the law prevents harmful or discriminatory practices from hiding behind “tradition.”

4. Impact of Sections 315 and 258 Working Together

When read together, these provisions create a two-step safeguard for customs and other pre-existing laws:

1. Section 315 ensures they survive the constitutional transition, but only in a form consistent with the Constitution.

2. Section 258 ensures any custom claimed in court must meet the definition of a legal custom and pass admissibility tests.

Example:
A land tenure system that existed before 1999 (an existing law) can still be applied today, but if challenged in court, it must first be shown to be a legally recognized custom under Section 258 and must comply with constitutional protections like equality and fairness.

5. Conclusion

Section 315 of the Constitution keeps Nigeria’s legal past alive, but under the watchful eye of constitutional supremacy. Section 258 of the Evidence Act acts as the quality-control filter for customs, ensuring that only those consistent with justice, public policy, and written law enter the courtroom.
This synergy allows Nigeria to respect tradition without being bound by outdated or unjust practices, blending continuity with constitutional progress.