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CUSTOMARY LAW IS PART OF NIGERIAN LAWS WHEN PROVED

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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

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CUSTOMARY LAW IS A QUESTION OF FACT TO BE PROVED

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

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PATERNITY ACKNOWLEDGED CHILD WILL SHARE IN ESTATE

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.

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

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.”

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YORUBA CUSTOMARY LAW REQUIRES CONSENT OF FAMILY TO SELL LAND

It is a settled position of law that, by Yoruba Customary Law, a transaction for the sale and conveyance of family land requires the consent of all members of the family or substantial majority of them. See AFOLABI COKER VS MARIAMO OGUNTOLA & ORS (1985) 2 NWLR (Pt. 87); ELIAS VS OLAYEMI DISU & 3 ORS (1962) 1 ALL NLR 214; FOKO VS FOKO (1965) NMLR 3, EBOSIE VS EBOSIE (1976) 6 UILR 217.

— S.D. Bage, JSC. Onyekwuluje v Animashaun (2019) – SC.72/2006

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CUSTOMARY LAW IS LAW, AND NOT ARBITRARILY

The importance of customary law vis-a-vis Customary Courts to adjudication process or administration of justice system in Nigeria cannot be over-emphasized. The sui generis nature of Customary Courts vis-a-vis the practice and procedure thereof have also been alluded to above. Regrettably, ever since the emergence of the sociological ideas of Roscoe Pound, with particular regard to the modern concept of law in a developing society, the most unreasonable and highly misplaced criticism about African law (customary and nature is that it is merely custom, and not law. However, most cherishingly, concerted efforts have so far been made to sweep away the cobwebs, the myths, prejudices, and philosophical doubts of those who hove all along denied that there was any such thing as African law, customary or native low. Professor Allott, formerly of the School of Oriental And African Studies, University of London, was most pertinent when he wrote, inter alia, thus: ‘African law (customary law) is, in short, reasoned, it is not arbitrary savage or non-existent. The difference between African and Western law is one of degree, not of kind.’

– I.M.M. Saulawa JCA. Agara v. Agunbiade (2012) – CA/L/304/2009

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DENYING LANDLORD’S TITLE UNDER CUSTOMARY LAW WARRANTS FORFEITURE

There is no doubt that from the pleading and the evidence the respondents have denied the title of the appellants which is an act of misconduct under customary law. It is an act of misbehaviour which attracts the penalty of forfeiture Ojomu v. Ajao (1983) 2 SCNLR 156; Josiah Aghenghen & Ors. v. Chief Maduku Waghoreghor (1974) 1 S.C.1, Ajani Taiwo & Ors. v. Adamo Akinwumi & Ors. (1975) 4 S.C. 143.

— Olatawura, JSC. Ogunola v. Eiyekole (1990) – SC.195/1987

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