LEGAL PRINCIPLE: CIVIL PROCEDURE – Capacity to Sue – Head of Family – Requirement of Strict Proof of Headship
PRINCIPLE STATEMENT
The question of headship of a family, if in issue, must be established by evidence of customary law, which is a matter of evidence to be proved unless judicial notice can be taken.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Agbabiaka v. Saibu & Ors (1998) NLC-1711995(SC) at pp. 11; Paras B--D.
"The question of headship of a family is a matter which, if it is in issue, must be established by evidence of customary law. This is because customary law which varies from one place to another is entirely a matter of evidence to be decided 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 followed by the courts that judicial notice thereof would be taken without evidence required in proof."
EXPLANATION / SCOPE
Customary law is a question of fact unless judicially noticed. A party claiming family headship must adduce evidence of the customary law governing succession. The principle applies to all disputes involving customary rights. Judicial notice is limited to well-known, notorious customs. The court cannot assume the existence of a custom without proof. The burden of proof is on the party alleging headship. The principle ensures that only genuine customary claims succeed.
