Jurisdiction in customary law matters in Nigeria: a critical examination

Akintunde Obilade

doi:10.1017/S0021855300012948

Jurisdiction in customary law matters in Nigeria: a critical examination

Published online by Cambridge University Press: 28 July 2009

Akintunde Obilade

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Since the British established the first statutory native courts in Nigeria, attempts have been made to reserve for such courts original civil jurisdiction in customary law matters which were considered to be within the peculiar knowledge of traditional authorities, who, consistently with the indirect rule system, normally manned the tribunals. The first legislative measure reserving original civil jurisdiction for the statutory native courts was the Protectorate Courts Ordinance, 1933 which established a High Court for that part of the Colony and Protectorate of Nigeria known as the Protectorate, and provided that the High Court was not to exercise original jurisdiction in cases raising any issue as to title to, or interest in, land and which were subject to the jurisdiction of a native court, except where the Governor in Council directed otherwise or where the case was transferred from a native court under the provisions of the Native Courts Ordinance, 1933. Thus matters involving land tenure with respect to which native courts had jurisdiction were regarded as. customary law matters which could best be dealt with by traditional courts or courts having a traditional setting.

Type: Articles
Information: Journal of African Law , Volume 17 , Issue 2 , Summer/Été 1973 , pp. 227 - 240

DOI: https://doi.org/10.1017/S0021855300012948 [Opens in a new window]
Copyright: Copyright © School of Oriental and African Studies 1973

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² Traditional courts, i.e., indigenous courts, which the British found in the territories now constituting Nigeria were called native courts by the British administration. See, e.g., Native Courts Proclamation, 1900, No. 5 of 1900 (Northern Nigeria), Statutory courts established in Nigeria by the British administration to administer, principally, customary law and thus replace the traditional courts, were also called native courts. See, e.g., Native Courts Ordinance, 1918 (No. 5 of 1918). Compare n. 4, p. 228 infra.

³ With respect to criminal proceedings, only native courts had original jurisdiction in customary criminal law matters. See Criminal Code Act, cap. 42, Laws of the Federation of Nigeria and Lagos, 1958 Revision, s. 4 as at June 1st, 1916. See also Gubba v. Gwandu N.A. (1947) 12 W.A.C.A. 141 interpreting that section as amended in 1933; and Maizabo v. Sokoto N.A. 1957 N.R.N.L.R. 133. However, since the abolition of customary criminal law (see Constitution of the Federation, Act No. 20 of 1963, s. 22 (10) ), customary law has ceased to be important in criminal proceedings except in a few cases involving the statutory definition of an offence by reference to customary law. See, e.g., Penal Code, cap. 89, Laws of Northern Nigeria, 1963 Revision, s. 387, which punishes adultery when committed by a man “subject to any native law or custom in which extra-marital sexual intercourse is recognised as a criminal offence”, s. 388 (adultery by a woman) and s. 403 (drinking of alcohol by a person “of the Moslem faith”).

⁴ I.e., matters governed by customary law.

⁵ On the indirect rule system, see M. Perham, Lugard: the years of authority 1898–1945, pp. 138 et seq.; T. O. Elias, Nigeria: the development of its laws and constitution, pp. 73 et seq.; and T. O. Elias, Government and politics in Africa (2nd ed. 1963), pp. 25 et seq.

⁶ No. 45 of 1933.

⁷ No. 44 of 1933.

^{page 228 note 1} (1930) 2 W.A.C.A. 1, at p. 3.

^{page 228 note 2} No. 23 of 1943.

^{page 228 note 3} See p. 227 supra.

^{page 228 note 4} Native Courts in Lagos, Western, Midwestern, South-Eastern and Rivers States (see n. 6 infra) are called customary courts. Native courts in the East-Central State, too, were, until their abolition (see n. 5 infra) called customary courts. Those in the northern States —North-Western, North-Central, Kano, North-Eastern, Benue-Plateau and Kwara—are designated Area Courts, except that the highest appellate native court in each northern State is named the Sharia Court of Appeal.

^{page 228 note 5} See Magistrates’ Courts Law (Amendment) Edict, 1971 (No. 23 of 1971), s. 16 (1).

^{page 228 note 6} The States (Creation and Transitional Provisions) Decree, 1967 (No. 14 of 1967), divided Nigeria into twelve states, namely, North-Western, North-Central, Kano, North-Eastern, Benue-Plateau, Kwara (formerly Central-West), Lagos, Western, Midwestern, East-Central (formerly Central-Eastern), South-Eastern and Rivers States with effect from May 27th, 1967.

^{page 228 note 7} See High Court Law, cap. 61, Laws of Eastern Nigeria, 1963 Revision, ss. 11 (2) and 14 as amended by the High Court Law (Amendment) Edict, 1971 (No. 22 of 1971), s. 3.

^{page 228 note 8} The only customary courts in Lagos State are those in Badagry, Epe, Ikeja and Ikorodu Administrative Divisions of the State—all the areas being formerly part of Western Nigeria. See n. 6 supra.

^{page 228 note 9} A suit involving land is not necessarily a land matter. For example, a succession suit involving land is not a land matter. The test of classification is “the real issue between the parties” and “not merely the wording of the suit”. See Kwow v. Eku II (1934), 2 W.A.C.A. 180.

^{page 228 note 10} No. 9 of 1964.

^{page 228 note 11} By virtue of s. 1 (5) of the States (Creation and Transitional Provisions) Decree, 1967, all laws in force in any part of the country immediately before the creation of States continue to apply there with necessary modifications until they are repealed by the appropriate authority.

^{page 229 note 1} Formerly, Customary Courts Law: see Interpretation Law, cap. 51, Laws of Western Nigeria, 1959 Revision, s. 10. The Lagos State provision reads: “… and except in causes or matters relating to the administration of intestate estates transferred to the High Court under s. 29A of the Customary Courts Law …”: see n. 2 infra.

^{page 229 note 2} See also similar provisions in force in other States: High Court Law, cap. 44, Laws of Western Nigeria, 1959 Revision, s. 9 proviso; High Court Law, cap. 49, Laws of Northern Nigeria, 1963 Revision, s. 17; High Court Law, cap. 61, Laws of Eastern Nigeria, 1963 Revision, s. 14 (Rivers and South-Eastern States), and High Court of Lagos Act, cap. 80, Laws of the Federation of Nigeria and Lagos, 1958 Revision, s. 11 (2), as inserted by s. 2 of the Lagos State (Adaptation of Laws) (Miscellaneous Provisions) Order, 1972 (L.S.L.N. No. 16 of 1972). There are similar provisions in the law in all the States, except the East-Central and Lagos States, limiting the jurisdiction of Magistrates’ Courts (or, in the northern States, District Courts), too, in customary law matters. See, for example, Magistrates’ Courts Law, cap. 74, Laws of Western Nigeria, 1959 Revision, s. 19 (4). A discussion of these provisions is outside the scope of this article.

^{page 229 note 3} Cap. 49, Laws of Northern Nigeria, 1963 Revision.

^{page 229 note 4} See nn. 6 and 11, p.228 supra.

^{page 229 note 5} Formerly a native court: see Area Courts Edict, 1968 (North-Eastern State) (No. 1 of 1968), s. 2 (2). An Area Courts Edict is in force in each of the northern States. The six Edicts are substantially identical in wording, the only differences being those found in references to the name of the State where a particular Area Courts Edict applies and references in the title to the year of enactment, 1967 or 1968. Each Edict came into force on April 1st, 1968.

^{page 229 note 6} On the burden of proof, see n. 2, p.230 infra.

^{page 230 note 1} See p. 229 supra.

^{page 230 note 2} The High Court of the former Northern Nigeria has said in Kosoko v. Nakoji (1959) N.R.N.L.R. 15, that the Court should not reject jurisdiction unless it is satisfied by admission or proof that jurisdiction has really been taken away from it by law. (See Aburimi v. Assemblies of God Mission 14 W.A.C.A. 185 cited in Kosoko's case in support of this statement.) Accordingly, the courts have held that the onus is on the person contending that the High Court has no jurisdiction to prove ouster of jurisdiction. (See Etuwewe v. Etuwewe 1967 N.M.L.R. 41.) In principle, however, once a party contending that the court has no jurisdiction in a matter has proved that under the general rule the Court has no jurisdiction, the onus should be on the party contending that the High Court has jurisdiction by reason of the common exceptions to prove that the matter is within the common exceptions.

^{page 230 note 3} Cap. 59, Laws of Northern Nigeria, 1963 Revision.

^{page 230 note 4} See Mabera v. Obi (1972) S/9 S.C. 242, and Izenkwe v. Nadozie (1953) 14 W.A.C.A. 361 at 363.

^{page 230 note 5} Ibid.

^{page 230 note 6} See Mabera v. Obi, supra at p. 254 where the Supreme Court said, “[T]he first [recovery of land], third [damages for trespass] fourth [accounts of all monies collected as rents by the defendant] and fifth [order that sale of the house be set aside and declared void] legs of the claim, in the particular circumstances of this case raise an issue as to an interest in the said land” (emphasis supplied). See also Kosoko v. Nakoji supra.

^{page 230 note 7} See Mantonmi v. Ibiyemi (1953) 14 W.A.C.A. 390 at 392, in which the court was interpreting s. 19 (1) of the Magistrates’ Courts Ordinance, cap. 122, Laws of Nigeria, 1948 Revision—a provision similar to s. 17 (1) of the High Court Law, cap. 49, Laws of Northern Nigeria, 1963 Revision.

^{page 230 note 8} North-Eastern State (No. 1 of 1968): see n. 5, p.229 supra.

^{page 231 note 1} “written law” includes all statutes in force other than English statutes extending to Nigeria: see Interpretation Law, cap. 52, Laws of Northern Nigeria, 1963 Revision, s. 3.

^{page 231 note 2} N.E.S.L.N. 4 of 1968.

^{page 231 note 3} Cap. 59, Laws of Northern Nigeria, 1963 Revision, s. 41 (2).

^{page 231 note 4} Every area court established under the Edict is, within the limits of its jurisdiction, “a court of competent jurisdiction for the purposes of s. 41 of the Land Tenure Law”: see Land Tenure Law, s. 41 (6), as inserted by Area Courts Edict, 1968, s. 69 and Second Schedule.

^{page 231 note 5} Emphasis supplied. This provision does not, however, confer on an area court jurisdiction in disputes relating to intertribal disputes: see Land Tenure Law, s. 41 (2), proviso.

^{page 231 note 6} See Area Courts (Jurisdiction) Notice, 1968 (N.E.S.L.N. 4 of 1968).

^{page 231 note 7} Sea Area Courts Edict, 1968 (North-Eastern State) (No. 1 of 1968), s. 17(1), and First Schedule, Part II.

^{page 231 note 8} See Land Tenure Law, s. 41 (2).

^{page 231 note 9} S. 15 of each Area Courts Edict (see n. 5, p.229 supra) provides:

“(1) Subject to the provisions of this Edict and of any other written law, the following persons shall be subject to the jurisdiction of area courts—

(a) any person whose parents were members of any tribe or tribes indigenous to some part of Africa and the descendants of any such person;

(b) any person one of whose parents was a member of such tribe; and

(2) The Military Governor may by order direct that any or all of the powers conferred by this Edict shall not be exercised by any area court over any person or classes of persons designated in such order or that such powers shall not be so exercised without the consent of the persons concerned.

(3) No area court shall exercise, in contravention of any order made under subsection (2), any jurisdiction conferred by this Edict.”

^{page 231 note 10} Supra.

^{page 231 note 11} No. 8 of 1955.

^{page 232 note 1} See E. A. Keay and S. S. Richardson, The Native and Customary Courts of Nigeria, 1966, p. 178.

^{page 232 note 2} Cap. 105, Laws of Nigeria, 1948 Revision.

^{page 232 note 3} Supra.

^{page 232 note 4} Cap. 49, Laws of Northern Nigeria, 1963 Revision.

^{page 232 note 5} Cap. 59, Laws of Northern Nigeria, 1963 Revision.

^{page 232 note 6} See n. 1, p. 231 supra.

^{page 232 note 7} S. 41.

^{page 232 note 8} I.e., proceedings in respect of a statutory right of occupancy granted by a native authority or of a customary right of occupancy where all parties are subject to the jurisdiction of native courts or area courts: see p. 231 supra.

^{page 232 note 9} S. 41 (1) confers exclusive original jurisdiction on the High Court in (a) proceedings in which the right of the Military Governor or the right of the Commissioner charged with responsibility for land matters to grant a statutory right of occupancy over any land is in dispute; (b) proceedings by way of petition of right; and (c) proceedings by the Attorney-General for the recovery of possession of native lands.

^{page 233 note 1} Ibid.

^{page 233 note 2} See p. 228 supra.

^{page 233 note 3} I.e., a native court: see n. 4, p. 228 supra.

^{page 233 note 4} See pp. 228–229 supra.

^{page 233 note 5} See pp. 230–232 supra.

^{page 233 note 6} See Area Courts Edict, 1968 (North-Eastern State) (No. 1 of 1968), s. 17 (1), and First Schedule, Part 2.

^{page 233 note 7} Cap. 42, Laws of the Federation of Nigeria and Lagos, 1958 Revision, Schedule.

^{page 233 note 8} Cap. 59, Laws of Northern Nigeria, 1963 Revision.

^{page 233 note 9} See High Court Law, Laws of Northern Nigeria, 1963 Revision, s. 17 (2).

^{page 233 note 10} Cap. 31, Laws of Western Nigeria, 1959 Revision, s. 18 (2), and Second Schedule.

^{page 233 note 11} The position is the same in Lagos State by virtue of s. 1 (5) of the States (Creation and Transitional Provisions) Decree, 1967 (No. 14 of 1967); s. 2 of the Lagos State (Applicable Laws) Edict, 1968 (No. 2 of 1968); and s. 11 (2) of the High Court of Lagos Act, cap. 80, Laws of the Federation of Nigeria and Lagos, 1958 Revision, as inserted by s. 2 of the Lagos State (Adaptation of Laws) (Miscellaneous Provisions) Order, 1972 (L.S.L.N. No. 16 of 1972). But the Government of Lagos State plans to abolish Grade A Customary Courts (see p. 235 infra).

^{page 233 note 12} Customary Courts Law, cap. 31, Laws of Western Nigeria, 1959 Revision, s. 18 (2), and Second Schedule as amended by s. 28 of the Customary Courts (Amendment) Law, 1964 (No. 11 of 1964).

^{page 234 note 1} All Customary Courts in the Midwestern, Rivers and South-Eastern States have unlimited jurisdiction in matrimonial causes governed by customary law. See Customary Courts Edict, 1966 (Midwestern State) (No. 38 of 1966), s. 81 (1), and Second Schedule; Customary Courts (No. 2) Edict, 1966 (Rivers State) (No. 29 of 1966), s. 12 (1), and First Schedule; and South-Eastern State Customary Edict, 1969 (No. 9 of 1969), s. 12 (1), and First Schedule.

^{page 234 note 2} Customary Courts Law, cap. 31, Laws of Western Nigeria, 1959 Revision, s. 18 (2), and Second Schedule as amended by s. 28 of the Customary Courts (Amendment) Law, 1964 (No. 11 of 1964) (Lagos and Western States); and Customary Courts Edict, 1966, s. 18 (1), and Second Schedule (Midwestern State).

^{page 234 note 3} (Midwestern State) (No. 38 of 1966).

^{page 234 note 4} Ibid., s. 18 (1) and Second Schedule.

^{page 234 note 5} It seems doubtful, however, that testamentary succession is known to the customary law of any part of any of the three States. See, e.g., P. C. Lloyd, Yoruba land law, 1962, p. 290.

^{page 234 note 6} T. O. Elias, Government and politics in Africa, 2nd ed. 1963, pp. 200–201.

^{page 234 note 7} Ibid., p. 220. See also N. A. Ollennu, “The case for traditional courts under the constitution” [of Ghana] (1970) 7 U.G.L.J. 82, at p. 83.

^{page 234 note 8} See, e.g., Area Courts Edict, 1968 (North-Eastern State), ss. 4 and 70, and Judicial reforms in Northern Nigeria, 1967, published by the Ministry of Information (Northern States). Compare Native Courts Law, cap. 78, Laws of Northern Nigeria, 1963 Revision.

^{page 235 note 1} See Customary Courts (Amendment) Law, 1959 (No. 34 of 1959).

^{page 235 note 2} See Ehigie v. Ehigie (1961) 1 All N.L.R. 842.

^{page 235 note 3} Ibid., at p. 848. However, in very rare cases, where the legal practitioner is versed in the customary law of the area of jurisdiction of the Court, proof of customary law is dispensed with: see Ehioghae v. Ehioghae (1964) N.M.L.R. 30.

^{page 235 note 4} See Customary Courts Law, cap. 31, Laws of Western Nigeria, 1959 Revision, Second Schedule.

^{page 235 note 5} Unless the particular legal practitioner is versed in the law of the area of jurisdiction of the Court, there must be proof of a rule of customary law. The principle of judicial notice of customary law does not apply since (a) it is a principle of the common law, (b) the customary courts are not empowered to apply the common law, and (c) the law does not confer on them any power to take judicial notice of customs. Compare Ehigie v. Ehigie, supra, at p. 848, and E. A. Keay and S. S. Richardson, op. cit., p. 196. The evidence laws which provide for judicial notice do not apply to the customary courts of any of these jurisdictions: see, e.g., Evidence Act, cap. 62, Laws of the Federation of Nigeria and Lagos, 1958 Revision, s. 1 (4) (c).

^{page 235 note 6} See White Paper on the Report of the Tribunal of Inquiry into the reorganisation of local government councils, 1971, para. 23.

^{page 235 note 7} See pp. 233–234 supra.

^{page 235 note 8} No. 29 of 1966.

^{page 235 note 9} See The Rivers State at a Glance (1971), published by the Government of the Rivers State, p. 11.

^{page 235 note 10} South-Eastern State Customary Courts Edict, 1969 (No. 9 of 1969), s. 12 (1), and First Schedule.

^{page 235 note 11} No. 38 of 1966.

^{page 235 note 12} Ibid., s. 6 (1) (c).

^{page 236 note 1} Order X, Rule 6 (3) of the Customary Court Rules, 1966 (M.N.L.N. 37 of 1967), provides: “Where in any cause or matter before a customary court any party wishes to rely on the customary law of the area of jurisdiction of the court there shall be no need to prove the customary law before the Court.”

^{page 236 note 2} Customary Courts Edict, 1966, s. 18 (1), and Second Schedule.

^{page 236 note 3} Daily Times, Oct. 11th, 1972, p. 3. See also Nigerian Observer, Oct. 11th, 1972, p. 1.

^{page 236 note 4} Magistrates’ Courts Law (Amendment) Edict, 1971 (No. 23 of 1971), s. 16 (1).

^{page 236 note 5} High Court Law, cap. 61, Laws of Eastern Nigeria, 1963 Revision, ss. 11 (2) and 14 as amended by s. 3 of the High Court Law (Amendment) Edict, 1971 (No. 22 of 1971).

^{page 236 note 6} All questions of Moslem personal law must be heard and determined by any member of an area court learned in Moslem law sitting alone. See Area Courts Edict, 1968 (North-Eastern State), s. 4 (2).

^{page 236 note 7} There are four sources of Moslem law, namely, (a) the Holy Quran, (b) the practice of the Prophet (the Sunna), (c) the consensus of scholars, and (d) analogical deductions from (a) and (b): see A. A. Fyzee, Outlines of Mohammadan law (3rd ed. 1964), pp. 18—21; J. Schacht, The origins of Muhammadan jurisprudence, p. 1.

^{page 237 note 1} The version of Moslem law administered by the courts in Nigeria is Moslem law of the Maliki School. See, e.g., Sharia Court of Appeal Law, cap. 122, Laws of Northern Nigeria, 1963 Revision, s. 14, which empowers the Sharia Court of Appeal (the highest appellate native court) of each of the northern States to administer Moslem law of the Maliki School as customarily interpreted at the place where the trial at first instance took place.

^{page 237 note 2} Compare Customary Courts Edict, 1966 (Midwestern State), s. 6 (1).

^{page 237 note 3} Compare non-Moslem customary law. See Owonyin v. Omotosho (1961) 1 All N.L.R. 304 at 309; Lewis v. Bankole (1908) 1 N.L.R. 81 at 83; A. E. W. Park, The sources of Nigerian law, 1963, pp. 66–68; and E. A. Keay and S. S. Richardson, op. cit., pp. 228–230.

^{page 237 note 4} See n. 1, supra.

^{page 237 note 5} See, e.g., Customary Courts (Jurisdiction) Order, 1970 (South-Eastern State), S.E.S.L.N. No. 1 of 1971, Schedule.

^{page 237 note 6} See Daily Sketch, Dec. 27th, 1971, p. 4.

^{page 237 note 7} See Customary Courts Rules, 1966 (Midwestern State) (M.N.L.N. 37 of 1967), Order X relating to Evidence.

^{page 237 note 8} Suit No. UHC/5/70 (January 18th, 1972) (Midwestern State)—unreported.

^{page 237 note 9} See n. 2, p. 238, infra.

^{page 238 note 1} See also Etuwewe v. Etuwewe 1967 N.M.L.R. 41; and Aragba v. Akanji (1960) W.N.L.R. 92.

^{page 238 note 2} The Court apparently ignored the fact that the case was transferred from a customary court. Since the case was transferred to the High Court—presumably, under the Customary Courts Edict, 1966—the High Court should have held that it had jurisdiction: see High Court Law, 1964, s. 10, Proviso. Compare High Court of Lagos Act, cap. 80, Laws of the Federation of Nigeria and Lagos, 1958 Revision, s. 11 (2), as inserted by s. 2 of the Lagos State (Adaptation of Laws) (Miscellaneous Provisions) Order, 1972.

^{page 238 note 3} See N. A. Ollennu, op. cit., p. 106.

^{page 238 note 4} See Magistrates’ Courts Law (Amendment) Edict, 1971, ss. 5 and 6; and High Court Law (Amendment) Edict, 1971, s. 3.

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