The burden of proof of customary law is on the party asserting its existence. See Usibiafo v. Usibiafo (2005) 3 NWLR (Pt.913) 665 at 684; Sokwo v. Kpongbo (supra). It has been established through plethora of cases that it is extremely important that native law and custom must be pleaded and strictly proved by credible evidence. This case is not predicated on proof by the mode of judicial notice, but by proof of evidence.
— T. Akomolafe-Wilson, JCA. Alabi v Audu (2017) – CA/A/494/2014
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Pam vs. Gwom (2000) FWLR 9Pt.1) 1 at 12 that: “The right of appeal from the Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of Customary Law and/or such other matters as may be prescribed by an Act of National Assembly that can extend this right by providing for such matters. Neither the Federal Military Government nor the National Assembly, made such other provision as envisaged in Section 224(1) of the 1979 Constitution. In the circumstances, for an appeal from the Customary Court of Appeal to the Court of Appeal to be competent, it must raise a question of Customary Law.”
Ayoola JSC: “The question therefore is: when is a decision in respect of a question of Customary Law? I venture to think that a decision is in respect of Customary Law when the controversy involves a determination of what the relevant Customary Law is and the application of the customary Law so ascertained to the question in controversy… When the decision of the Customary Court of Appeal turns purely on facts, or a question of procedure, such decision is not with respect to a question of Customary Law, not withstanding that the applicable law is Customary Law.”
Alake v. Pratt (1955) 15 W.A.C.A. 20, to the effect that if paternity of children is acknowledged by a man during his lifetime they are to be regarded as legitimate and entitled to share in his estate with his children born of a marriage contracted under the Marriage Ordinance.
It is settled law that it is for a party to a contract to take all necessary precautions in order to avoid a bad bargain. See Owo v. Kasumu (1932) 11 NLR 116; the maxim is caveat emptor (let the buyer beware). It is the vendor’s duty, however, to disclose defects in his title. The law is that in a transaction of sale of land under customary law, once there is payment of the purchase price of the land to the purchaser in the presence of witnesses, title in the land passes to the purchaser. See Ogunbambi v. Abowaba 13 WACA. 222; Cole v. Folami (1956) SCNLR 180; (1956)1 FSC 66 and Ashaye v. Akerele (1968) NMLR. 190. In the instant case, no such customary sale did indeed take place and the trial court rightly so found. This is because the respondent did not pay the full price for the 4 plots of land he purported to purchase from the appellants for 950pounds with a balance of 250pounds left unpaid. The attributes of a void sale being therefore absent from the purported sale to the respondent, title thereto not having passed, the court below seriously erred when it held that under customary law the legal representatives of Jemi-Alade transferred the ownership of the land in dispute on the part-payment of the purchase price thereof.
— Onu, JSC. Odusoga v Ricketts (1997) – SC.57/1990
It is well settled that customary law is a question of fact to be proved by evidence. See Section 14 of Evidence Law. Hence a party who alleges the existence of a particular custom must adduce sufficient evidence in support and to establish its existence to the satisfaction of the court. See Inyang v Ita (1929) 9 NLR 84. But there comes a time when by frequent litigation in the courts, a point of customary law has been sufficiently ruled upon, the courts will no longer require proof, and would be prepared to take judicial notice of it. See Angu v Attah, PC 74, 28, 43; Buraimo v Gbamgboye (1940) 15 NLR 139; Giwa v Erimolokun (1961) 1 All NLR 294, 1 SCNLR 337. The burden is on the defendants to establish the custom they rely upon for their defence. Balogun v Labiran (1988) 3 NWLR (Part 80) 66. Indeed only a single decision, sufficiently cogent and authoritative would be sufficient – Larinde v Afiko (1940) 6 WACA 108, but see Cole v Akinyele (1960) 5 FSC 84; (1960) SCNLR 192; Folami & others v Cole & others (1990) 2 NWLR (Part 133) 445.
– Karibe-Whyte JSC. Agbai v. Okogbue (1991) – SC 104/1989
The cases cited by learned Counsel for the parties namely Esugbayi Eleko v Officer Administrating the Government of Nigeria; In Re Whyte; Cole v Cole; Nwokoro v Onuma; Buhar of Kaligeri v Bornu Native Authority; Laoye v Oyetunde, deal with elementary principles of our customary law jurisprudence to wit that customary laws are part of the body of laws to be applied by the Court, the application of customary laws subject to the doctrine of repugnance, the essential ingredients of proof and incidents of customary laws.
– Nwokedi JSC. Agbai v. Okogbue (1991) – SC 104/1989
As our society advances, they are more removed from its pristine social ecology. They meet situations which were inconceivable at the time they took root. The doctrine of repugnancy in my view affords the courts the opportunity for fine tuning customary laws to meet changed social conditions where necessary, more especially as there is no forum for repealing or amending customary laws. I do not intend to be understood as holding that the Courts are there to enact customary laws. When however customary law is confronted by a novel situation, the courts have to consider its applicability under existing social environment.
– Nwokedi JSC. Agbai v. Okogbue (1991) – SC 104/1989
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