LEGAL PRINCIPLE: CONSTITUTIONAL LAW — Appellate Jurisdiction — Customary Court of Appeal — Meaning of Question of Customary Law
PRINCIPLE STATEMENT
A decision is on a question of customary law when it involves determining what the relevant customary law is and applying it. Where parties agree on the applicable customary law, no question of customary law arises. Decisions on pure facts or procedure are not questions of customary law, even if the applicable law is customary law.
RATIO DECIDENDI (SOURCE)
Per Ayoola, JSC (as adopted by Ogundare, JSC), in Hirnor & Anor v. Yongo & Ors (2003) NLC-241997(SC) at pp. 13–14; Paras B–D.
"I venture to think that a decision is in respect of a question of customary law when the controversy involves a determination of what the relevant customary law is and the application of customary law so ascertained to the question in controversy. Where the parties are in agreement as to what the applicable customary law is and the Customary Court of Appeal does not need to resolve any dispute as to what the applicable customary law is, no decision as to any question of customary law arises. ... Where the decision of the Customary Court of Appeal turns purely on facts, or on question of procedure, such decision is not with respect to a question of customary law, notwithstanding that the applicable law is customary law."
EXPLANATION / SCOPE
A question of customary law requires determining the content of the custom. If parties agree on the custom, no question of customary law arises. The principle applies to appellate jurisdiction. Pure facts or procedure do not raise customary law questions. The rule limits the right of appeal. The appellant must show a genuine dispute over customary law. The principle is well-established.
