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NIGERIAN CUSTOMARY LAW
According to section 258(1) of the Nigerian Evidence Act 2011, “custom means a rule which, in a particular district, has, from long usage, obtained the force of law.”
It was considered in Aku v Aneku (1991) 8 NWLR (Part 209) 280 at 294, where the court
merely adopted the definition according to the Black’s Law Dictionary, as a usage
or practice of the people, which, by common adoption and acquiescence, and by long
and unvarying habit, has become compulsory, and has acquired the force of a law with
respect to the place or subject-
In Okonkwo v Okagbue (1994) 9 NWLR (Part 368) 301 at 345, the Supreme Court defined custom as a particular way of behaviour, which, because it has been long established among members of a social group or tribe, can develop and acquire a force of law or right. For a custom to have the force of law it must be approved by consent of those who follow it.
The Supreme Court, in Pam v Gwom (2000) 1 SC 56 at 65, made a very useful pronouncement on the meaning and nature of customary law:
“One must know what customary law means to be able to determine in an appeal whether a question of customary law is involved. In Oyewunmi v Ogunesan (1990) 3 NWLR (Part 137) 182 at 207, Obaseki JSC defined “Customary law” as “the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static. It is regulatory in that it controls the lives and transactions of the community subject to it. It is said that custom is a mirror of the culture of the people . . .”
The Supreme Court, in Lipede v Sonekan (1995) 1 NWLR (Part 374) 668 at 701, had this to say on the two statutory ways of establishing custom, viz. by judicial notice or evidence:
On the issue of the applicable customary law, section 14(1) of the Evidence Act provides that customary law is a matter of fact to be pleaded and proved by evidence unless it has been judicially noticed. In other words, customary law is a matter of evidence on the facts presented before the court and must therefore be proved in any particular case unless it is of such notoriety and has been so frequently applied by the courts that judicial notice would be taken thereof without evidence required in proof. See Giwa v Erinmilokun (1961) 1 SCNLR 337; (1961) All NLR (Part 2) 294 at 294.
Obaseki JSC, delivering the lead judgment of the Supreme Court in Ojemen v Momodu (2001) FWLR (Part 37) 1138, declared that it is settled law that except where a rule of customary law has received judicial recognition, such rule is treated for the purpose of proof as a matter of fact.
Section 16(1) of the Nigerian Evidence Act 2011 provides that a custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence; the burden of proving a custom shall lie upon the person alleging its existence.
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