LEGAL PRINCIPLE: CIVIL PROCEDURE – Jurisdiction – Determination of – Claims for Declaration of Customary Law – Justiciability
PRINCIPLE STATEMENT
It cannot, in my view, be correctly and legally argued that the High Court cannot entertain and adjudicate on such a claim in the exercise of its unlimited jurisdiction vested in it by Section 236(1) of the Constitution of the Federal Republic of Nigeria 1979. ... The Appellants have not by their claim asked for that declaration [to be made by the Chieftaincy Committee]. What the Appellants seek is a declaration that ... under the customary law ... In carrying out this judicial task, the court will from the evidence adduced ascertain and find whether there is customary law on the matter, what the customary law is and then decide whether on the evidence ... It cannot, in my view, be correctly and legally argued that the High Court cannot entertain and adjudicate on such a claim.
RATIO DECIDENDI (SOURCE)
"It cannot, in my view, be correctly and legally argued that the High Court cannot entertain and adjudicate on such a claim in the exercise of its unlimited jurisdiction vested in it by Section 236(1) of the Constitution of the Federal Republic of Nigeria 1979. ... The Appellants have not by their claim asked for that declaration [to be made by the Chieftaincy Committee]. What the Appellants seek is a declaration that ... under the customary law ... In carrying out this judicial task, the court will from the evidence adduced ascertain and find whether there is customary law on the matter, what the customary law is and then decide whether on the evidence ... It cannot, in my view, be correctly and legally argued that the High Court cannot entertain and adjudicate on such a claim."
EXPLANATION / SCOPE
The High Court has unlimited jurisdiction under Section 236(1) of the 1979 Constitution to entertain claims for declaration of customary law. The court ascertains and finds what the customary law is based on evidence. This is different from asking the court to make a declaration that should be made by a Chieftaincy Committee. The High Court’s role is judicial—determining the existence and content of custom. The claim is justiciable. The court does not usurp executive or legislative functions. The principle affirms that customary law is a question of fact to be proved by evidence. The High Court may declare the customary law as applied to the parties. The court’s finding binds the parties but does not codify custom for all purposes. The jurisdiction is constitutionally guaranteed.
