LEGAL PRINCIPLE: CUSTOMARY LAW — Proof of Custom — Custom Is a Matter of Fact to Be Pleaded and Proved by Evidence
PRINCIPLE STATEMENT
Customary law is a matter of fact to be pleaded and proved by evidence unless it has been judicially noticed. It must be proved in any particular case unless it is of such notoriety and has been so frequently applied by the courts that judicial notice would be taken.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Lipede & & Ors v. Sonekan & Anor (1995) NLC-721989(SC) at p. 39; Paras. D–E.
"customary law is a matter of fact to be pleaded and proved by evidence unless it has been judicially noticed. In other words, customary law is a matter of evidence 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 applied by the courts that judicial notice would be taken thereof without evidence required in proof."
EXPLANATION / SCOPE
Customary law must be pleaded and proved unless judicially noticed. The principle applies to all customary law issues. The party alleging a custom bears the burden of proof. Judicial notice is limited to well-known, notorious customs. The rule prevents the imposition of unproven customs. The court may rely on previous decisions where the custom was established. The custom must be certain and not repugnant to natural justice.