APPEAL FROM CUSTOMARY COURT OF APPEAL TO COURT OF APPEAL MUST RELATE TO CUSTOMARY QUESTION

IN CUSTOMARY LAW, PAYMENT OF PURCHASE PRICE PASSES TITLE

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

CUSTOMARY LAW IS PART OF NIGERIAN LAWS WHEN PROVED

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

CUSTOM CAN BE PROVED BY A SINGLE WITNESS

In the cited case of Usiobaifo v. Usiobaifo (2005) 3 NWLR (Pt. 913) 665 Tobi JSC at pp. 683 – 684 paragraphs H D clarified the position thus – “The main crux of this appeal is whether the respondents proved the Ishan Customary Law of inheritance. The appellants submitted that they did not. The respondents submitted that they did prove the customary law. It is the argument of the appellants that a person other than the party asserting the custom should testify in proof or in support thereof. Although learned counsel cited Ozolua II v. Ekpenga and Oyediran v. Alebiosu (supra), it is my humble view that proof of customary law is not one of the areas in our adjectival law that need corroboration. While it could be desirable that a person other than the person asserting the Customary Law should testify in support of the customary law, it is not a desideratum. This is because the Evidence Act does not so provide. And here, Section 14(1) provides the anchor. The subsection merely provides that a custom ‘can be proved to exist by evidence.’ And evidence can be led on the existence of the custom by a single witness or more witnesses. It is not my understanding of the law that a village or community of witnesses must be called to satisfy the provision of Section 14(1). In the evidential scene in the context of probative value, it is not the number of witnesses that matter but the quality of the evidence given. And so, a situation may arise where a single witness gives credible evidence while a number of witnesses may not because they are a bundle of contradictions. Therefore emphasis should be on quality of the evidence given rather than the quantity.” (Underlining supplied for emphasis)

DOCTRINE OF REPUGNANCY TO FINE TUNE CUSTOMARY LAW

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

WHAT JUDGE MAY DO WHEN CUSTOMARY LAW IS NOT PLEADED

When the learned trial Judge felt convinced that the fact of the customary law of Enugu-Ukwu relevant and material to the case ought to have been pleaded and proved, but was not, he could not have suggested to the respondents (plaintiffs before the court) to amend their pleadings. To have done so would have meant that he was aiding them to establish their case. But he could have advised himself that unless pleadings were duly amended, he could not raise the lack of proof of the fact, material as it was, suo motu, and proceeded to make an order of striking out on that ground. He could have properly called on counsel on both sides at the address stage of the proceedings to address him on the propriety of a non-suit as, unlike in Lagos State, for which see Anyakwo v. A.C.B. Ltd. (1976) 2 S.C. 41, pp. 55-65; Lawal v. National Electric Power Authority (1976) 3 S.C. 109, p.135, a decree of non-suit is still available in Anambra.

— Nnaemeka-Agu, JSC. Ugo v Obiekwe (1989) – SC.207/1985