Introduction
Although judges are presumed to know the law, customary law occupies a unique position in Nigerian jurisprudence. Unlike statutory law, which courts must judicially notice, customary law is generally treated as a question of fact and must be proved by the party asserting it, except where it has become so notorious and judicially recognized that proof becomes unnecessary.
Judicial Notice of Customary Law
Sections 72 and 73 of the Evidence Act require courts to take judicial notice of all laws, meaning parties need not prove the existence of such laws. However, section 14 expressly excludes customary law from this automatic recognition. Customary law must therefore be proved as a fact unless it has gained sufficient judicial acceptance.
This position was affirmed in Angu v. Attah and restated by the Federal Supreme Court in Giwa v. Erinmilokun, which held that native law and custom require evidence unless they are so notorious and frequently applied that courts may judicially notice them.
The rationale is practical: there are numerous local customs across Nigeria, and judges, trained primarily in English law, cannot be presumed to know all of them (as observed by Nnaemeka-Agu J.S.C. in Ugo v. Obiekwe).
Requirements for Judicial Notice
Under section 14(2) Evidence Act, a custom may be judicially noticed if:
1. It has been frequently applied by a superior or co-ordinate court; and
2. The court can reasonably assume that the people in that locality regard the custom as binding.
The question of “how many times” was clarified by the Supreme Court in Romaine v. Romaine, which held that one case alone is insufficient, the custom must be shown to have been applied in several cases. Earlier conflicting decisions in Cole v. Akinyele and Osinowo v. Fagbenro are thereby resolved.
Geographical Scope
Judicial notice only applies where the earlier cases came from an area sharing the same custom as the area in question. In Taiwo v. Dosunmu, the Supreme Court held that a Ghanaian customary law could not be applied in Lagos; a custom valid in Area A is not automatically applicable in Area B without proof of similarity.
Evidence of Customs
If a custom has not been judicially noticed, it must be proved as required under section 14(3) and sections 56 and 58 of the Evidence Act, which recognize two main methods:
1. Evidence of Witnesses
Custom may be proved through the testimony of persons with special knowledge, chiefs, elders, and others familiar with the native law and custom.
Courts are not bound to accept such testimony automatically; they assess credibility and motives.
- Accepted: Nwabuba v. Enemuo—evidence of a traditional ruler accepted.
- Rejected: Adewoyin v. Adeyeye—Ooni of Ife’s testimony rejected due to bias.
2. Books and Manuscripts
Courts may rely on books recognized by the community as authoritative sources of customary law.
Examples include:
- Adeseye v. Taiwo — Ajisafe’s Law and Custom of the Yoruba People.
- Oyelowo v. Oyelowo — Nwabueze’s Nigerian Land Law.
However, courts may reject a book where the asserted custom appears doubtful, as in Idundun v. Okumagba.
In Orugbo v. Una, the Supreme Court held that courts may consult such books even if not tendered by parties.
Conclusion
The ascertainment of customary law balances respect for indigenous norms with the need for certainty in judicial proceedings. While statutory law is automatically noticed, customary law must be proved unless it has acquired judicial recognition through consistent application. This framework ensures that only authentic and well-established customs influence judicial decisions while allowing courts to reject claims based on unreliable or self-serving assertions.
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