LEGAL PRINCIPLE: CUSTOMARY LAW — Proof of Custom — Burden of Proof
PRINCIPLE STATEMENT
Native law and custom are matters of evidence and must be proved in any particular case, unless they are of such notoriety and frequently followed that judicial notice may be taken; the burden lies on the party alleging its existence.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Nsirim v. Nsirim (2002) NLC-1761995(SC) at p. 12; Paras D–E.
"Native law and custom, otherwise also referred to as customary law, are matters of evidence on the facts presented before the court and must therefore be proved in any particular case unless, of course, they are of such notoriety and have been so frequently followed or applied by the courts that judicial notice thereof would be taken without evidence required in proof. The proof of customary law, being an issue of fact, clearly lies on the party alleging its existence."
EXPLANATION / SCOPE
Customary law is a question of fact, not law, unless judicially noticed. The party alleging a custom must prove it. Judicial notice is limited to well-known, notorious customs. The burden of proof is on the balance of probabilities. The principle prevents the imposition of unproven customs. The court may rely on previous decisions where the custom was established. Evidence may include testimony of elders, witnesses, or expert opinion. The custom must be certain and not repugnant to natural justice. The rule applies to all customary law issues. The court cannot assume the existence of a custom without proof. The principle ensures that only genuine customs are enforced.