LAW OF EVIDENCE.
ASSIGNMENT:
IS THERE A DIFFERENCE BETWEEN PROOF OF
CUSTOMARY LAW AND PROOF OF OTHER FACTS?
First, I agree that there exists a little difference from proof of customary law from proof of other
facts but before justifying this view, it is pivotal to look into what customary law is and its
relationship with other facts.
Introduction
Customary law, an intrinsic component of Nigeria's legal framework, is firmly entrenched in the
lives of its citizens, regulating essential aspects of existence from birth to death. It permeates
individual identities as members of distinct ethnic or cultural groups and governs their collective
existence within those groups. Defined by its adherence to established practices, cultural values,
and communal consciousness, customary law mirrors the societal customs and traditions
ingrained in the collective psyche of the people it governs.
In legal discourse, customary law has been defined through landmark cases and scholarly
analyses. For instance, in Owoniyi v Omotosho1 The Nigerian judiciary described customary
law as "the mirror of accepted usage," highlighting its role as a reflection of societal norms and
practices. This characterization underscores the dynamic nature of customary law, which evolves
over time in response to changing circumstances while retaining its regulatory function in
guiding social transactions and interactions.
Furthermore, in Oyewumi v Ogunsesan2, the court recognized customary law as organic and not
static, illustrating its adaptability to changing social and economic conditions. The judiciary
emphasized that customary law serves as a regulatory framework, guiding and controlling the
lives and transactions of those subject to its jurisdiction.
Judicial interpretations also emphasize the flexibility of customary law. In Lewis v Bankole,
Chief Justice Osborne3 noted that customary law is subject to motives of expediency and can
adapt to altered circumstances without losing its character. This flexibility enables customary
law to address evolving societal needs while maintaining its relevance and efficacy.
Legislatively, the Evidence Act of 2011 in Section 258(1) defines customs as rules that, through
long usage in a particular district, have obtained the force of law. Similarly, the Plateau State
Customary Court of Appeal Law of 1979 and the Customary Courts Law of the defunct Eastern
Region recognize customary law as rules of conduct established by custom and usage, distinct
from common law or statutory enactments.
1 1962 WNLR 1 at 5.
2 (1990) 3 NWLR 182 at 207.
3 1 NLR 80 at 100–01
Scholarly perspectives corroborate these legal definitions, emphasizing customary law's
communal origins and unwritten nature. Scholars such as Obi, Elias, Malemi, and Kiye4
underscore the binding nature of customary law, rooted in the collective recognition and
enforcement of rules within specific communities.
The process of customary law formation is elucidated by Bennett and Vermeulen5, who
describe it as emerging from the repetition of behavioral patterns that gain recognition and
acceptance within a community. This communal involvement in law creation highlights the
organic nature of customary law, shaped by the collective will of the community it serves.
Typically, law need not be proven, since it is law and it is presumed that the court has ample
knowledge of it. However, in Nigeria, Customary law is not treated as law in the first instance
but is treated as fact, thus there exists a need to prove it and it has to be in accordance with the
provisions of section 16,17,18,19 and 73 of the Evidence Act, 2011.
This creates a nexus between customary law and other facts because both have to be proven in a
court of law, however, where customary law differentiates itself from other facts is the way it is
proven and this shall be properly elaborated below;
Proof of Customary Law
Customary law, unlike other facts, has specific provisions that exist in the Evidence Act on how
they can be proven to be regarded as an actual law.
4 SNC Obi Modern Family Law in Southern Nigeria (1966, Sweet & Maxwell) at 7.
TO Elias The Nature of African Customary Law (1956, University Press) at 55.
E Malemi The Nigerian Legal System: Text and Cases (3rd ed, 2012, Princeton Publishing Co)
at 64.
ME Kiye “The repugnancy and incompatibility tests and customary law in anglophone
Cameroon” (2015) 15/2 African Studies Quarterly 86 at 86.
5 TW Bennett and T Vermeulen “Codification of customary law” (1980) 24/2 Journal of African Law 206 at
215
The determination of customary law in court proceedings is governed by the comprehensive
provisions outlined in Section 16 of the Evidence Act 2011. This section specifies that a custom
can be incorporated into the legal framework governing specific circumstances if it can be
recognized by the judiciary or proven to exist through evidence. The responsibility of proving
the existence of a custom rests with the individuals asserting its validity. It is established legal
doctrine that unless a custom is officially recognized by the judiciary, the party claiming its
existence must substantiate it with evidence, this was held in the case of Temile v Awani6
Section 17 of the Evidence Act 2011 further elaborates on the recognition of customs by the
judiciary, stating that a custom can be judicially noticed if it has been previously adjudicated
upon by a superior court of record. This principle was exemplified in the case of Olagbemiro v
Oba Ajagungbade III & Ors.7 In this case, the appellant sought a declaration of title to a piece
of land, damages for trespass, and a perpetual injunction against the respondents. The 1st
defendant, claiming ownership of all land in the town under customary law, except those
previously granted, contested the appellant's claim. The trial court ruled against the appellant, but
the Court of Appeal overturned the decision, granting the 1st defendant's counterclaim. The
Supreme Court, on appeal, examined the admissibility of traditional evidence presented by the
parties in light of the Evidence Act. It concluded that the customary land law, indicating the land
belonging to distinct ruling families rather than solely to the Soun of Ogbomoso, had been
recognized and acted upon by superior courts, justifying its judicial notice.
This was also the case in Giwa v Erinmilokun8 where the court noted that unless a custom is
judicially noticed, the party contending that it exists has to prove it as a fact.
In Cole v Akinyele9 The court held that customary law only has to be adjudicated upon once by
a superior court of record for it to be considered as Law.
It should be noted that in High Court or Magistrate Court proceedings, customary law may be
established through evidence or recognized judicially if it has gained notoriety through frequent
proof or application in courts. However, a single instance of applying customary law to a specific
6 (2001) FWLR (Pt. 62) 1937 at 1953
7 (1990) 2 NSCC 182 (SC)
8 (1961) All NLR 294 at 379
9 (1960) SCNR 193
case does not automatically warrant its judicial notice unless it satisfies the stringent
requirements set forth in Section 17 of the Evidence Act 2011.
When proving a custom, testimony from credible witnesses who possess specialized knowledge
about that particular custom or its nature is highly relevant, Section 18(1) of the Evidence Act
2011. In such cases, the opinions of traditional rulers, chiefs, and other individuals with expertise
on the custom or native law in question, as well as any books or manuscripts regarded as
authoritative sources on the real meaning of the custom by the people bound by it, are considered
relevant evidence.
The Supreme Court case of Nwanwuba v. Enemuo10 highlighted that in land dispute matters, it
is commonly understood that elderly persons and traditional rulers, by virtue of their positions,
are likely to know the true facts and are disinclined to distort the truth.
Section 70 of the Evidence Act 2011 allows courts to consider the opinions of traditional rulers,
chiefs, or other persons with special knowledge of the customary law and custom as evidence
when adjudicating issues related to customary law. Additionally, this provision permits the use
of any book or manuscript recognized by the indigenous people of the locality where the law or
custom applies.
In the case of Uzoegiwu v. Ifekandu11, the appellate court deemed a book by Prof. Obi on Igbo
customary land tenure system as a relevant authority when deciding matters concerning Igbo
customary law on land, based on Section 59 (now Section 70) of the Evidence Act.
Similarly, in Adeseye v. Taiwo12, the court relied on books by Barrister Adebesin Folarin titled
"Law and Customs of the Yoruba People" and "The Laws and Custom of England" to determine
the Yoruba customary law on the inheritance of immovable property, which states that such
property is inherited by children and their descendants in perpetuity, to the exclusion of other
blood relations.
10 (1988) 2 NWLR (Pt. 78) 589 at 595.
11 (2000) FWLR (Pt.72) 1950 (CA)
12 (1956) 1 FSC 84
However, in Adedibu v. Adewoyin & Anor,13 the court found the reliance on a memorandum
by Mr. Ward Price titled "Memorandum of Land Tenure in the Yoruba Province" improper, as
the book was not submitted as evidence, and it was not shown to be recognized as a legal
authority by the native people. The declaration granted based on this memorandum was held
invalid on appeal.
Sections 18(2), 73 and 74 of the Evidence Act provide further scenarios where opinions of
relevant witnesses are admissible to prove the existence of a custom when it is an issue in a case:
1. When the court has to form an opinion on the existence of any general custom or right, the
opinions of persons likely to know of its existence if it did exist are admissible. This includes
customs or rights common to a considerable class of persons (Section 18(2).
2. When forming an opinion on the usages, tenets, constitution or government of any body of
men, family, religious or charitable foundation, the opinions of those with special knowledge on
the matter are admissible (Section 73).
3. When determining the meaning of words/terms used in particular districts or by certain classes
of people, opinions of those with special means of knowledge are admissible (Section 74).
However, simply proving the existence of a custom is not enough for a party to succeed. They
must also prove that the existing custom governs the particular circumstances of the case. There
may be competing customs (general vs exception) on the same subject.
The case of Adeniji v. Adeniji14 highlighted this, where there were two intestate succession
customs (Idi-igi and Ori-Ojori) among the Yorubas. Without evidence of the family head's
preference, the court erred in applying one over the other.
13 (1951)13 WACA 191
14 (1972) 1 All NLR 298
Importantly, merely being a president of a customary court does not automatically make one an
expert in customary law.
Limitations
It should be noted that there exists certain limitations
The proof of customary law in court is subject to certain limitations, as outlined below:
i. Discretionary Recognition: The phrase "may be judicially noticed by the court" used in the
sections of the Evidence Act suggests that courts are not obligated to recognize a custom.
Recognition of a custom is contingent upon meeting specific conditions, one of which is
previous acknowledgment by a court of superior or co-ordinate jurisdiction in the same area. The
term "same area" pertains to the locality where the custom is purportedly applicable, such as an
ethnic group or Muslim community area. For instance, in Taiwo v Dosunmu15, the Supreme
Court stressed the need to interpret "the same area" as an area where some grounds exist for
presuming uniformity in customs.
ii. Test of Public Policy: Section 18(3) of the Evidence Act mandates that customs cannot be
enforced if they contravene public policy or violate principles of natural justice, equity, and good
conscience. The test of public policy assesses whether a custom aligns with societal norms and
values. For example, in Re Adadevoh16 customs promoting promiscuity were deemed contrary
to public policy. Similarly, in Alake v. Pratt17, customs favoring discrimination against children
born out of wedlock were considered incompatible with public policy.
iii. Repugnancy Test: The repugnancy test serves as a primary criterion for assessing the
validity of customary law and imposes a constraint on its proof in court. According to this test,
customary laws must not conflict with principles of natural justice, equity, and good conscience.
Customs deemed barbaric or unreasonable have been consistently rejected by Nigerian courts.
15 (1965) 1 All NLR 399 at 404
16 (1951) 13 WACA 304
17 (1955) 15 WACA 20
For instance, in Eshugbayi Eleko v. Officer Administering the Government of Nigeria18, a
barbaric custom was rejected on grounds of repugnancy to natural justice. Similarly, in Edet v.
Essien19, a custom allowing a man to claim custody of children based on payment of dowry was
deemed repugnant to natural justice and equity.
In essence, one big difference in the proof of customary law from other facts is the specific
criteria of proving customary law
Requirement of the assent of the people
Another argument that makes customary law stand out from other facts is the position that
customary law gets its validity from the people and not the court, this was better expounded
according to Enabulele20 where he stated that
‘The factual element of customary law is not even the same as other facts that need to be proved
in court; it is a special type of fact that reposes, not just within the knowledge of the person
asserting or denying it in court, but also within the collective consciousness of members of the
community subject to the custom’
In other words, unlike other facts, the validity and enforcement of customary law is derived
from the people of a society that see it as binding and where that does not exist then customary
law cannot be regarded as law.
In fact there has been argument that since customary law is validated by the assent of the people
this makes it flexible and susceptible to change as the ways of the people change, thus the
judicially noticed customary law the court as recognized might in fact not be the way of the
people any longer
18 (1931) A.C 662 at 673)
19 (1932) 11 NLR. 47
20 A.O Enabulele,Jan.15 2019. Validity and Enforceability of Customary Law in Nigeria: Towards a
Correct Delimitation of the Province of the Courts.
To expound on this point Enabulele noted that Judicial notice of custom, especially under the
current Evidence Act, can cause problems for the original nature of customary law. When a court
applies a custom that has been set in precedent, it might forget that when the custom was first
proven, it was unique to a certain area and seen as binding by the people there. Woodman21 talks
about how court-recognized customary law (lawyer’s customary law) might not match up with
what society actually accepts (sociologist’s customary law). This mismatch can happen during
the process of establishing customary law in court. Sometimes, courts base decisions on weak
evidence or previous cases, which might not reflect local variations in customs. This can weaken
the importance of the people's agreement with a custom, as it becomes dependent on what the
court has accepted before, even if the people's views have changed.
To be recognized judicially, customary law should have been acted upon by courts in various
ways, so they can consider how the custom has evolved over time. Osborne CJ in Lewis v
Bankole22 highlighted the risk of solidifying custom in a way that doesn't allow for flexibility
when needed. He stressed that his findings were meant to be general principles, not strict rules.
Allott23 also pointed out that once custom is codified or settled by courts, its binding force
depends on precedent, not necessarily on what people actually follow. This could lead to a gap
between court-administered law and public practice.
Courts that ignore the importance of people's agreement might apply custom based on their own
ideas, leading to two different versions of the same customary law: one in court precedent and
another as practiced by the people. Customary law frozen in precedent loses its validity if it no
longer has the support of the people. So, it's up to the native community to re-prove a rule of
customary law if it has changed after being set in precedent.
This issue of mismatch is not present in other facts and that is another distinction between the
proof of customary law and proof of other facts
21 Woodman “Some realism”, above at note 70 at 134
22 ibid
23 Allott “The judicial ascertainment”, above at note 50 at 258.
In conclusion, the distinction between proving customary law and proving other facts lies in the
intricate interplay between judicial recognition, societal acceptance, and the evolution of legal
precedents. Customary law, deeply rooted in communal traditions and local practices, requires
careful consideration of both its historical origins and contemporary relevance. Unlike the proof
of other facts, which may rely solely on tangible evidence, establishing customary law demands
a nuanced understanding of its dynamic nature and the extent to which it reflects the will and
consensus of the community it governs.
The process of proving customary law entails a delicate balance between acknowledging its
organic development and ensuring its consistency within the framework of legal precedent.
While courts play a crucial role in recognizing and institutionalizing customary practices, they
must remain vigilant to avoid crystallizing these customs in a manner that disregards their
inherent flexibility and adaptability to changing societal norms.
In contrast, the proof of other facts often follows more straightforward evidentiary standards,
focusing on verifiable data and empirical observations. While both types of proof share the
objective of informing legal decisions, customary law presents unique challenges due to its
reliance on subjective interpretations and cultural nuances.
Ultimately, the difference between proving customary law and proving other facts underscores
the complexities inherent in reconciling traditional customs with the formalities of legal
proceedings. By recognizing the importance of community consent and allowing for the
evolution of customary practices, courts can uphold the integrity of customary law while
ensuring equitable justice for all.