The burden of proof of customary law is on the party asserting its existence. See Usibiafo v. Usibiafo (2005) 3 NWLR (Pt.913) 665 at 684; Sokwo v. Kpongbo (supra). It has been established through plethora of cases that it is extremely important that native law and custom must be pleaded and strictly proved by credible evidence. This case is not predicated on proof by the mode of judicial notice, but by proof of evidence.
— T. Akomolafe-Wilson, JCA. Alabi v Audu (2017) – CA/A/494/2014
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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)
Alake v. Pratt (1955) 15 W.A.C.A. 20, to the effect that if paternity of children is acknowledged by a man during his lifetime they are to be regarded as legitimate and entitled to share in his estate with his children born of a marriage contracted under the Marriage Ordinance.
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)
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
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
Pam vs. Gwom (2000) FWLR 9Pt.1) 1 at 12 that: “The right of appeal from the Customary Court of Appeal to the Court of Appeal is as of right and must relate to any question of Customary Law and/or such other matters as may be prescribed by an Act of National Assembly that can extend this right by providing for such matters. Neither the Federal Military Government nor the National Assembly, made such other provision as envisaged in Section 224(1) of the 1979 Constitution. In the circumstances, for an appeal from the Customary Court of Appeal to the Court of Appeal to be competent, it must raise a question of Customary Law.”
Ayoola JSC: “The question therefore is: when is a decision in respect of a question of Customary Law? I venture to think that a decision is in respect of Customary Law when the controversy involves a determination of what the relevant Customary Law is and the application of the customary Law so ascertained to the question in controversy… When the decision of the Customary Court of Appeal turns purely on facts, or a question of procedure, such decision is not with respect to a question of Customary Law, not withstanding that the applicable law is Customary Law.”
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