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WHAT JUDGE MAY DO WHEN CUSTOMARY LAW IS NOT PLEADED

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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

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customary law

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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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

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A STATUTE WILL NOT APPLY TO CUSTOMARY LAW

Distinguishing these cases from the instant case, the Court of Appeal correctly held that the marriage between P.W.1 and the appellant was shown to be under native law and custom. In further distinguishing the cases, the Court of Appeal referred to the facts. In Rimmer v. Rimmer (supra) both husband and wife were wage earners. They bought a house in the name of the husband as the matrimonial home. The wife provided the deposit for the house. The rest of the purchase money was borrowed on the security of a mortgage from a building society in the name of the husband. Part of the principal of the mortgage money was repaid out of the housekeeping money provided by the husband. The remainder was repaid by the wife out of her money at a time her husband was on war service. The wife provided all the furniture for the home out of her own resources. When subsequently, the husband left the wife and the house was sold, the proceeds was shared equally between them on a summons under section 17 of the Married Women’s Property Act 1881 (U.K.). This was because it was not possible fairly to assess the separate beneficial interests of the husband and wife by reference to their contributions to the purchase of the house. In the instant case, the Married Womens’ Property Act 1881 (U.K.) is inapplicable since the marriage is governed by customary law.

– Karibe-Whyte JSC. Amadi v. Nwosu (1992)

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NATIVE CUSTOM IS A QUESTION OF FACT

Native law and custom being a question of fact in an action in the High Court, it is true that the findings in these cases are not binding as precedents, and it is also true, as has been pointed out by Mr Oseni on behalf of the respondents, that however learned and experienced the Judges whose judgments are relied on may have been, they could only act on the evidence which the parties in the cases concerned chose to call before them.

Odunsi Lasisi Ajibola v. Aminu Akindele Ajani Ojora (1961)

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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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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)

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