PRINCIPLES OF CONTRACT UNDER CUSTOMARY AND ISLAMIC LAW IN NIGERIA: A COMPARATIVE ANALYSIS OF ITS CONSTITUENTS

Abstract

Nigeria’s legal system is characterised by the coexistence of multiple legal traditions, most notably Customary Law and Islamic Law. Islamic law is derived from the Holy Quran, the sayings and actions of the Prophet Muhammad, the consensus of scholars, and analogical reasoning. Contracts under Islamic law must comply with these sources and adhere to the principles of fairness, transparency, and mutual benefit. One of the key principles in Islamic contracts is the prohibition of usury or interest, which means that any contract involving interest is considered void. Additionally, excessive uncertainty is prohibited, meaning that the terms of the agreement must be clear and certain. Customary law, on the other hand, emerges from the traditional usage and practice of a people in a given community that has been mutually acquired, adopted, and practiced to the extent that it has gained compulsion and force of law within that community. Once such traditional usage and practice attains this status, it attracts sanctions of different kinds and becomes enforceable. However, enforcement of native laws and customs under Nigerian law is not automatic, as such laws are only enforceable in Nigerian courts when they exist and are not repugnant to natural justice, equity, or good conscience. It has been settled by judicial authority in Nigeria that Islamic law is distinct from customary law, a position premised on the reasoning that Islamic law does not belong to any particular tribe but constitutes a complete system of universal law that is more certain, permanent, and universal than English common law. Customary law, by contrast, is organic and dynamic in nature, reflecting the accepted usage and culture of a given people. This research examines the philosophy behind this assertion and its application to the foundational components of contract formation and enforcement under customary and Islamic laws in Nigeria. It further examines capacity, contractual terms, breaches, and available remedies under both legal systems, highlighting doctrinal differences and practical implications in commercial and personal contexts. Doctrinal analysis and empirical case studies are employed to measure the influence of historical legal practices, regional customary norms, and the infusion of Islamic principles into Nigerian contract law. Judicial pronouncements from diverse jurisdictions are also examined to illustrate the dynamic interplay between statutory provisions, judicial interpretation, and traditional practices. The methodology adopted in this study is primarily qualitative, drawing on a wide range of secondary sources, including academic journals, contemporary textbooks, and online materials.