LEGAL PRINCIPLE: CUSTOMARY LAW — Yoruba Native Law and Custom — Succession to Headship of Family — Establishment of Custom by Historical Practice
PRINCIPLE STATEMENT
The historical fact that senior brothers succeeded one after the other as Dawodu of the family established a custom which must be followed. This practice followed from the founder's death over a period of 42 years.
RATIO DECIDENDI (SOURCE)
Per Kalgo, JSC, in Otun & Ors v. Otun & Anor (2004) NLC-2051999(SC) at pp. 9–10; Paras E–A.
"I understand the Court of Appeal to be saying that apart from the fact that the 1st respondent is the only surviving direct son of Ashimi Otun, and the natural Dawodu of Ashimi Otun's family, as per Lewis v. Bankole supra, the historical fact that his two immediate senior brothers of the same father, Sunmola Otun and Lamidi Otun, succeeded themselves, one after the other as Dawodu of that family, has established a custom which must be followed in his own case. I entirely agree as this was a practice which has been followed from 1937 when the founder of the family, Ashimi Otun died in 1979 when Lamidi Otun also died — a period of 42 years."
EXPLANATION / SCOPE
Long-standing family practice can establish customary succession rules. The principle applies to customary law. The court will recognise customs proven by historical practice. The rule provides evidence of custom. The period of practice must be substantial. The principle is well-established.