Proof of Nigerian Customary Law by Judicial Notice under the New Nigerian Evidence Act 2011
By Leesi Ebenezer Mitee
Section 16 of the new Nigerian Evidence Act 2011 contains provisions on the methods of proving the existence of a Nigerian custom and on whom the burden of proving such a custom lies:
What customs are admissible
16. (1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be judicially noticed or can be proved to exist by evidence.
(2) The burden of proving a custom shall lie upon the person alleging its existence.
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 [Section 16(1) of the new Nigerian Evidence Act 2011] 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Section 16(1) of the new Nigerian Evidence Act 2011 (Section 14(1) of the repealed Evidence Act) now provides that a custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can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.
Establishing the existence of a custom by judicial notice is governed by section 17 of the Evidence Act 2011 which provides that “A custom may be judicially noticed when it has been adjudicated upon once by a superior court of record.” It should be noted that this new provision is a radical departure from the provision under the repealed Nigerian Evidence Act 1945, which provided that a custom may be judicially noticed by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration.
Judicial notice is an act by which a court takes cognisance of, and acts upon, certain relevant facts, which are generally regarded as established by common notoriety or so well known to the court that proof of them becomes unnecessary. The Court of Appeal recently held in Akano v Ilorin Emirate Council (2001) FWLR (Part 42) 59 at 76 that customary law is regarded as a fact which must be pleaded and proved by evidence unless it is notorious. Under the old dispensation, the question as to the frequency of recognition of a particular custom by the court that is sufficient for purposes of judicial notice appeared to have been shrouded in controversy for a long time. However, the Supreme Court decision in Romaine v Romaine (1992) 5 SCNJ 25 at 44 – 45 seems to have clarified the position to an extent, which we shall quote in extenso because of its importance:
“But the learned Judge missed the point on another fundamental point: i.e. the view that one decision of the Supreme Court on a question of custom settled the matter for good to such an extent that it could be judicially noticed and applied in subsequent cases. With respects, this is not correct. In our law, a custom is a matter of evidence unless it qualifies for judicial notice. It can qualify for judicial notice only if it has been so often proved, pronounced upon and acted upon by a court of superior or co-ordinate jurisdiction in the same area to such an extent that it can be said that it has acquired notoriety . . . the case of Cole v Akinyele (1960) has sometimes been referred to as authority that a single binding decision is enough. In my view, this is no authority for such a proposition particularly in this. In the first place, Alake v Pratt (1955) 15 WACA which the Federal Supreme Court regarded as judicially noticeable in Cole’s case (supra) was not an isolated decision on the Yoruba custom of acknowledgment of paternity, which was the basis of the decision. As Dr. S. N. C. Obi rightly pointed out in his “Modern Family Law in Southern Nigeria” (1st Edition) at p. 6, before the decision in Alake v Pratt (supra) there were numerous decisions by the High Court of Western Region that such a custom existed. Even the West African Court of Appeal in Appeal No. 3552: In the Matter of the Estate of Herbert Samuel Heelas Macaulay, reported at p. 111 of WACA Cyclostyled Reports (October – November 1951) accepted that such a custom existed among the Yorubas but held that it was repugnant to equity and good conscience. It was only in Alake v Pratt (supra) that the court held that a custom so generally accepted by the people could not be jettisoned under the repugnancy doctrine . . . Secondly, in Cole v Akinyele (supra) the plaintiff pleaded the custom and invited the court to take judicial notice of it . . .
Also, if we take the view that a single decision of the Supreme Court could be regarded as sufficient and be judicially noticed, one may ask what is the significance of the words: “to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in that area look upon the same as binding in relation to circumstances similar to those under consideration” in section 14(2)? In my view, those words import the necessary requirement of notoriety into the concept. One decision of the Supreme Court on an important issue can easily pass unnoticed. But several, especially when applied by various courts in the judicial hierarchy cannot escape attention. It is only then that one can say that the custom decided upon has become notorious. It is then that it can be judicially noticed, not before.”
About two months later, the Supreme Court, in Olabanji v Omokewu (1992) 7 SCNJ 266 at 281, maintained its earlier position that “a custom can only be judicially noticed after it had been considered, accepted and acted upon in many decisions,” and not a single decision. In Osinowo v Fagbenro (1954) 21 NLR 3, three cases in which a particular custom was upheld were considered sufficient as the basis for taking judicial notice of that particular custom. Thus by virtue of section 14(1) of the repealed Nigerian Evidence Act, there were various requirements to be fulfilled for judicial notice to be taken of a custom:
- if it has been acted upon by a court (see Olabanji v Omokewu (1992) 7 SCNJ 266 at 281, where the court said, “The fact that the incumbent Olomu of Omu-Aran has made two installations of Aromu is not enough to make such an exercise a notorious custom);
- of superior or co-ordinate jurisdiction;
- in the same area;
- to an extent which justifies the court asked to apply it in assuming that persons or the class of persons concerned in that area;
- look upon the same as binding;
- in relation to circumstances similar to those under consideration.
It should be noted again that section 17 of the new Nigerian Evidence Act 2011 which provides that “A custom may be judicially noticed when it has been adjudicated upon once by a superior court of record” has simplified the proof of Nigerian custom by Judicial notice. However, what happens in a situation where the alleged custom has not been yet been adjudicated upon by a superior court of record? Only time will tell, by judicial decisions on the issue.