LEGAL PRINCIPLE: CUSTOMARY LAW – Proof of Custom – Custom Must Be Proved by Evidence
PRINCIPLE STATEMENT
Customary Law or Native Law and Custom is a matter of evidence to be decided on the facts presented before the court in each particular case. Indeed, Customary Law is a question of fact which must be proved by evidence if judicial notice is not available through decided cases of the superior courts. The only evidence led in support of the claim of the respondent was the evidence of the only witness called by the respondent. And he did not lead any evidence to prove the custom. Therefore, the finding of the learned trial Judge was not based on any credible evidence led before him. It is also trite that where an inferior court gives judgment which is not based upon any evidence, it is a nullity. See Udofe v. Aquisisua (1973) 1 SC 119.
RATIO DECIDENDI (SOURCE)
Per Onu, JSC, in Fabiyi v. Adeniyi & Ors (2000) NLC-1161994(SC) at pp. 6–7; Paras D–A.
"Customary Law or Native Law and Custom is a matter of evidence to be decided on the facts presented before the court in each particular case. Indeed, Customary Law is a question of fact which must be proved by evidence if judicial notice is not available through decided cases of the superior courts. The only evidence led in support of the claim of the respondent was the evidence of the only witness called by the respondent. And he did not lead any evidence to prove the custom. Therefore, the finding of the learned trial Judge was not based on any credible evidence led before him. It is also trite that where an inferior court gives judgment which is not based upon any evidence, it is a nullity. See Udofe v. Aquisisua (1973) 1 SC 119."
EXPLANATION / SCOPE
Customary law is a question of fact requiring proof by evidence unless judicial notice applies. Courts cannot assume the existence or content of a custom without evidentiary foundation. Where a party fails to adduce evidence proving the alleged custom, findings based on that custom are unsupported. Judgments not based on any evidence are nullities. The burden lies on the party asserting a custom to prove it. Mere assertion without evidence is insufficient. This protects against arbitrary imposition of unproven customs. Judicial notice applies only to well-established, notorious customs from decided cases.