LEGAL PRINCIPLE: CUSTOMARY LAW — Proof of Custom — Pleading and Evidence Required
PRINCIPLE STATEMENT
Customary law must be proved by evidence unless judicial notice can be taken. It is unsafe to accept the testimony of the only person asserting a custom as conclusive; it is desirable that a person other than the party asserting the custom should also testify in support.
RATIO DECIDENDI (SOURCE)
Per Iguh, JSC, in Ezeanya v. Okeke (1995) NLC-2651988(SC) at p. 28; Paras. A–C.
"There can be no doubt that native law and custom, otherwise also known as customary law, are matters of evidence on the facts presented before the court and must therefore be proved in any particular case unless they are of such notoriety and have been so frequently followed or applied by the courts that judicial notice ought to be taken without evidence required in proof thereof. On the issue of proof, it has been described as unsafe to accept the testimony of the only person asserting the evidence of custom as conclusive. It is desirable and certainly good law that a person other than the party asserting the custom should also testify in proof or support thereof."
EXPLANATION / SCOPE
Customary law is a question of fact requiring proof. Judicial notice is limited to notorious customs. Single witness testimony on custom is unsafe; corroboration is desirable. The principle applies to all customary law issues. The burden is on the party alleging the custom. The court will examine the evidence. The rule ensures that customs are properly proved. The principle protects against fabricated customs. The court may require multiple witnesses.