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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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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

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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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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

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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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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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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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