LEGAL PRINCIPLE: COURT — Area Court — Native Law and Custom — Need for Proof
PRINCIPLE STATEMENT
Save for general and notorious customs that can be judicially noticed, particular and local customs are matters of evidence and must be proved.
RATIO DECIDENDI (SOURCE)
Per Nnaemeka-Agu, JSC, in Kuusu v. Udom (1990) NLC-1741986(SC) at pp. 44–45; Paras D–A.
"Section 20(1)(a) of the Area Courts Edict read together with Order 13 Rules 4 and 5 of the Area Courts (Civil Procedure) Rules, 1972, oblige Area Courts to apply and administer customary laws of the people. The problem in this case is that none was proved. It is settled that save in the case of general and notorious custom, which can be judicially noticed, particular and local customs are matters of evidence. In this case, there was no proof that swearing on Swem was a local custom of the people. It follows that no factual base had been established to sustain the contention of the appellant."
EXPLANATION / SCOPE
Customary law is a question of fact, not law, except for general and notorious customs that courts can judicially notice. Local customs must be proved by evidence. The party alleging a custom bears the burden of proof. Failure to prove the custom is fatal to the claim. The principle applies in Area Courts, Customary Courts, and High Courts. The court cannot assume the existence of a custom. Evidence may include testimony of elders, previous decisions, or recognised customs. The rule prevents the imposition of unproven customs. The court must be satisfied that the custom is established, certain, and not repugnant to natural justice. The principle ensures that only genuine customs are enforced.