LEGAL PRINCIPLE: JURISDICTION – Chieftaincy Matters – Distinction Between Declaration of Customary Law and Finding of Customary Law
PRINCIPLE STATEMENT
It is not the business of the courts to make declarations of customary law relating to the selection of Chiefs under the Chiefs' Law. But it is the business of the court to make a finding of what the customary law is and apply the law for the purpose of the claims for declarations.
RATIO DECIDENDI (SOURCE)
Per Ogundare, JSC, quoting Obaseki, JSC in Adigun v. Attorney-General, Oyo State, in Odugbo v. Abu & Ors (2001) NLC-1121996(SC) at p. 62; Paras C–E.
"It is not the business of the courts to make declarations of customary law relating to the selection of Chiefs under the Chiefs' Law. But it is the business of the court to make a finding of what the customary law is and apply the law for the purpose of the claims for declarations."
EXPLANATION / SCOPE
Courts cannot make declarations of customary law in the abstract. They can, however, make findings of what customary law is and apply it to resolve specific claims. A “declaration” pronounces a legal rule independently of any dispute. A “finding” determines the content of customary law as applied to the facts of the case. The distinction prevents courts from issuing advisory opinions on customary law. The court’s role is to adjudicate disputes, not to codify custom. The finding is incidental to resolving the parties’ claims. The principle respects the legislative/executive role in codifying custom while preserving judicial power to apply custom in litigation. The court’s finding is binding only between the parties.