CUSTOMARY LAW IS PART OF NIGERIAN LAWS WHEN PROVED

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)

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

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

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