3.1       Introduction
            Custom means the established way of life of a particular people staturily, the Evidence Act defines custom in section 2 [1]as a “rule which in a particular district has from long usage, obtained the force of law”. The court par Nwokedi JSC judiciary followed the above definition in Agbai v. Okagbue.
            In the words of the Court of Appeal in Aku V. Aneku[2] custom is:
The unrecorded tradition and history of the people, which has “grown” with the “growth of the people to stability and eventually become an intrinsic part of their culture. It is a usage or practice of the people which by common adoption and acquiescence and by long and unvarying habit has become compulsory and has acquired the force of law with respect to the place or the subject matter to which it relates.

By this definition, the word “custom” and the phrase “customary law” are not only synonymous but also coterminous. In the ordinary parlance, it is not so. The word “custom may simply refer to established usages of a people, whether or not they have acquired the character of law. According to Niki Tobi JCA, there is a clear difference between the two. In Ojisna V. Aiyebelehin[3], the court of Appeal held that.
The word “custom” may only reflect the common usage and practice of the people in a particular matter without necessarily carrying with it the force of law. In other words a custom may exist without the element of coercion of sanction. John Austin had this in mind when he defined “custom as positive morality, as long as it does not receive judicial pronouncement. The element of law is important because it is that which in reality carries sanction in the event of breach.

            In other words, it is those customs that the people consider compulsory that constitute customary law.
            In Oyawunmi V. Ogunesan [4] Obaseki, JSC defined customary law as,
The organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is regulatory in that it controls the lives and transactions of the community subject to it.
The definition has been quoted with approval in many subsequent has been quoted with approval in many subsequent cases[5]. However, a more comprehensive definition of customary law is contained in section 2 of the customary court Edict (1984) of the old Anambra State. The Edict defines customary law as “a body of rules regulating rights and imposing correlative duties, being a rule or body of rules which obtains and is fortified by established usages and which is appropriate and applicable to any particular matter, dispute, issue or question”. 


3.2       Characteristics of Customary Law
            In Ojisua V. Aiyebelehin[6] Niki Tobi J.C.A. summarized the characteristics of customary law as follows: it must be in existence; it must be custom as well as law; it must be in existence; it must be acceptable; it is largely unwritten and related to its unwritten nature is its flexibility; and it should be universally applicable within the area of acceptability.
            In kindey and Ors. V. military Governor of Plateau State[7], Karibi- Whyte, J.S.C (as he then was) said:
“it is one of the characteristics of customary law that it to be in existence at the material time.
            Hence, at the time a particular rule of custom is sought to be relied upon, it must be shown that the people of the particular area accept it as their custom and acknowledge its existence or continued existence. Bairamian F.J. (as he then was) underscored the significance of the fact of acceptance in Owoniyi v Omotosho[8] when he said that customary law is, “a mirror of accepted usage”. Because of the flexibility of customary law, it is not sufficient to show that it was once in existence. Its continued existence at the material time it is sought to be relied upon must be proved.
            Speed Ag. C.J in acknowledging of this fact in lewis v bankole[9] said: it must be “existing native law and custom and not that of by gone days”. This position was reinforced splendidly by lord Alkin in eshugbayi eleko v government of Nigeria[10] thus:  
Their lordships entertain no doubt that the more barbarous customs of earlier days may under the influence of civilization become milder without losing their essential character as custom. It would however, appear to be necessary to show that in their milder form they are still recognized in the native community as custom, so as in that form to regulate the relations of the native community inter se…… it is the assent of the native community that gives a custom its validity and therefore, barbarous or mild, it must be shown to be recognized by the native community whose conduct it is supposed to regulate.

            Customary law, therefore, derives its strength and vitality from its acceptance by members of the community as obligatory on them. Hence, it would not be enough if a custom is merely shown to be in existence. In the words of Niki Jobi J.C.A, it must be custom as well as law. It is the element of law that gives the custom a binding character[11]. Park seems to agree with the above view when he said:
The practice in question should not only be “customary” it must also “be law”
.. It is clear without authority the habitual observance of the practice by the community is not alone sufficient. The observance must be a matter of obligation, which will if necessary, be enforced[12].
            Customary law is not rigid. It is flexible in response to be dynamic character of society and culture. This dynamic character of customary law is encapsulated in the judgment of Osborne. C.J., Lewis v Bankole[13] when he said that:
One of the most striking features of West African native custom…. Is its flexibility; it appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstance without entirely losing its character.
An example of the flexible nature of customary law is important here. Initially, customary law did not know total or complete alienation of land except to members of the family[14]. This rule of customary law subsequently gave way and land became freely alienable Obaseki JSC underscored the dynamic or organic character of customary law in Ogenwumi v Oguneson [15]when he said that:
Customary law is the organic or living law of the indigenous people of Nigeria, regulating their lives and transactions. It is organic in that it is not static; it is regulatory in that it controls the lives and transactions of the community subject to it.

            Another feature of customary law is that it is largely unwritten. In terms of origin, customary law is evolutionary rather than a product of conscious human effort. Its source is essentially the recollection of elders and others whose traditional roles enables, to have special knowledge of the customs and traditions of their people.
            There are provisions in our law according to which definitive statements of the customary law rules could be reduced into a written form[16]. The Ministry of Justice of the old Anambra State published a customary law manual, which it described as an authentic statement of the customary laws of communities in both Anambra and Imo States and is expected to guide the courts in their judicial functions. However, the manual was never infused with the force of law through legislation or otherwise. It therefore has no binding effect.
            The unwritten character of customary law initially gave rise to the idea that any transaction evidenced in writing was beyond the jurisdiction of customary law. The view was however, clarified in Rotibi v Savage [17] by Waddington, J. who said that the existence of written documents does not necessarily preclude the operation of customary law, especially where the document merely serves to evidence a money transaction.
            There is no uniformity in customary law among Nigerian communities. This is caused by the diversity of the people of Nigeria. Hence, diversity in people implies diversity of customs.
            Customary law varies from place to place and there may be as many customary laws as there are independent communities in the country. This diversity of customary law system is a major obstacle to uniformity of customary laws systems in each state.
            It should, however, be noted that to many respects, the ethnic customary law of an area is similar to that of another area where the indigenous people in both areas belong to the same tribe.
            Lastly, a rule of custom that has the force of law must be universally applicable within the area of acceptability. It should not be rule applicable to one section of the people within the area.
3.3       Is Muslim or Islamic Law Customary Law?
            An important question to ask here is whether Muslim or Islamic law customary law? This question is patient in the light of the fact that some legal text writers use to categorize customary law and Islamic law as a source of Nigerian law.
            The answer to the above question can be obtained from our foregoing discussion on the meaning, and characteristics of customary law. It is clear from the foregoing that Islamic law is not customary law. In the first place, Islamic Law is not indigenous to Nigeria, its history in Nigeria can be traced to the advent of Islamic religion in the country.
            Another distinguishing factor is that Islamic law unlike customary law is largely written. Again, Islamic law, being a law based on religion, is rigid or dogmatic in nature. This is unlike customary law which is unwritten and flexible.
            Thought the Islamic legal system has many schools, the school or branch which is practiced in Nigeria, the Maliki school, is almost uniformly applied in the areas governed by Islamic law, though, with some local variations. The difference between Islamic law and customary law was judiciary acknowledged by the Supreme Court in Usam v Umaru [18]. There justice Bello said:
Definition of ‘Customary law’ in section 2 of the customary court of Appeal law which means the rules of conduct…. As established by custom and usage is incapable of including ‘Moslem law’. Since the decision in Lewis v Bankole … ‘customary law has been stated to be unwritten customary law, recognized as law by the members of an ethnic group and it is a mirror of accepted usage’ … on the other hand, it is a notorious fact that Moslem law is written in the Holy Koran, in the numerous books of the Hadith … the explanation contradicts the contention of park and others. According to park, tribal laws are not the only systems covered by the term customary law’ for throughout federation it includes Islamic law also… thus for practical purposes Islamic and the various tribal laws are treated alike, though there are many theoretical distinctions between them[19].
            Another adherent of the above view is Obilade[20] who maintained that customary law in Nigeria may be divided in terms of nature, into two classes, namely, ethnic or non-Moslem customary law and Moslem law. 
            The contention of park and Obilade seems to have a statutory approval in section 2 of the native courts law of the former Northern Nigeria, which provides that “native law and custom includes Moslem law”.
            Generally, going by the nature and characteristics of customary law, Islamic law is not customary law. The fact however, remains that in several parts of Northern Nigeria the Islamic way of life has supplanted their local customs. In these areas, Islamic law should be seen not as the customary law of the area, but as the equivalent of customary law, which has been suppressed by it.
3.4       Ascertainment of Customary Law.
            As earlier observed customary law is unwritten, flexible and differs from culture to culture. Furthermore, a rule of custom may not necessarily have the force of law. It is only those usages, usages, which people consider as obligatory that have the force of law. The above noted characteristics of customary law make it difficult to establish.
            To solve the problem associated with ascertainment or establishment of customary two broad methods of establishment of customary law, i.e, by proof or by judicial notice have been suggested.
3.5       Proof of Customary Law
            In considering the question of proof of customary law, it should be pointed out that ascertainment of customary law before British-type courts and ascertainment of customary law before customary courts present different kettles of fish. Hence, they will be considered under different headings.
3.6    Proof of customary law before customary courts.
            Section 14(1) of the Evidence Act provides that a custom may be adopted as part of the law governing particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. However, by section 1(4) (c) of the Act, the Evidence Act does not apply to judicial proceedings in or before native court unless the Governor-in-council shall by order confer upon any or all native courts”… jurisdiction to enforce any or all of the provisions of the Act”,
            With regard to the above, there is no evidence that a state in the country has extended the application of the Evidence Act to customary or area courts as provided by the above law. Consequently, the modes of establishment of customary law prescribed by the evidence Act do not apply to customary or area courts[21]
            Evidence is a matter within the exclusive legislative list under the 1999 constitution[22] of Nigeria. Consequently, only the National Assembly can legislate on it. Therefore, it is safe to say that the purported enactment of evidence law by Lagos State is clearly ultra vires and thus null and void, with no effect whatsoever.
            Judges of customary and area courts are assumed to know the custom of their people. Therefore, customary law is not required to be proved before customary or area courts. In Nsemfo v Ababio 11[23] the West African court of Appeal held that it is not obligatory for a native court to require a custom to be proved through witnesses if the members of such court are familiar with the custom. The customary court in question in this cas was the Asantchene’s “A” court, the court of one of the paramount rulers of the then Gold coast now Ghana. The relevant customary law was that of the area of jurisdiction of the court and the members of the court were versed in the custom of the area.
            The high court of Western Region of Nigeria took a contrary position in Fijabi v Odumola [24] when it set aside the decision of a customary court on the ground that the customary court without proof applied a rule of customary law. This decision was, however, over ruled by the Supreme Court on appeal to it. The Supreme Court was of the view that if the defendant/respondent wishes to challenge the president’s ruling on specific point of customary law, he ought to give notice that he would apply to call evidence on the point and it was for the judge to decide whether or not to allow it.
            The case of Ehigic v Ehigic 26 took different course. In that case, the respondent was the eldest son and the appellant the eldest daughter of one Ehigic Edise who died intestate. The question before the customary court was which of the two children of the deceased-his eldest son or eldest daughter-was entitled to succeed to his property according to Benin native law and custom. No evidence was led before the court by either party to the dispute, as to what the Benin customary law of inhabitance was the president of the customary court Grade A, entered judgment: in favour  of the respondent. The court said that it was a fundamental principle of Benin customary law of inheritance that the eldest surviving male child of the deceased who performed all the custom and funeral ceremonies is the one entitled to inherit all of the deceased’s properties except those property or properties which the deceased gave away before his death; and that no child other than the eldest surviving male child of the deceased who had performed the funeral ceremonies had right of inheritance.
            On appeal to the High Court, Fatayi Williams J, (as he then was), held that the ends of justice will be better served if a customary law which has not been “so frequently before the court as to be well established and notorious” is proved by evidence in customary Courts. The learned judge distinguished the case of Ababio v Nsemfoo[25] from the one in hand. According to him the customary court which decided the former case was Asantehene’s ‘A’ court, a court of one of the paramount chiefs of the Gold coast, the members of which are familiar with their own native customary law. That being the case, it was not necessary to prove the customary law of the community before the court. In Western Nigeria, on the other hand, the only statutory qualification of a president of a Grade “A” customary court is that he must be a legal practitioner. He does not need to come from the area of the Court and does not need to have any special knowledge of the customary law of the area. Consequently the judge held that rules of customary law must be proved to the court.
            This decision must be criticized. In the first place, there was no evidence before the court that the President of the customary court did not come from the area of jurisdiction of the court. Secondly, the decision would seem to rest on the presumption that a legal practitioner as a president of a customary court does not need to know the customary law of his jurisdiction except where the law prescribes that as a condition for his appointment. The presumption should rather be that where members of a customary court are from the area of jurisdiction of the court, whether they are legal practitioners or not the members are presumed to know the customary law. The presumption is rebutable by calling evidence to prove the contrary. Hon. Justice Ojiako made a scathing criticism of the decision in Ehigie’s case when he said:
First and foremost, the court being a customary court, there was that presumption that the customary court judge was versed in the Benin Customary law-the law was embedded in his breasts and he needed no evidence to establish before him customary law which he is presumed to know[26].

In Usman Waziri v Musa Ugye and Ors[27], Belgore C.J. (as he then was), adopted a different interpretation by saying.

The Area Court of the area of action is presumed to know the native law and custom of the area, it is a rebuttable presumption and until it is rebutted, this statement of the law must not be interfered with.
A similar decision was reached in Edopkpolor v Idehen[28]where the plaintiff brought an action for trespass against the defendant before the Benin Grade A customary court, the president of the court prevented the defendant from adducing evidence of custom which was different from the one pleaded by the plaintiff. According to the president, as evidence of English is not required in English Courts, so also evidence of customary law is not required in customary courts.

In the case of Usman v Kareem[29]Onu, J.S (speaking for the Supreme Court said: the Area court Edict, 1967 of Kwara State empowers an Area Court in civil cases to administer the native law and custom prevailing in the area of jurisdiction of the court or binding between the parties. Thus the Local Area Court is presumed to know the local law and custom. Although the presumption is rebuttable until it is rebutted, the Area court’s pronouncement is valid.
This opinion, however, is an obiter since the question of whether customary law should be proved before a customary or area court was not in issue in that case.
            In Odufuge v Faloke[30], the Supreme Court endorsed the procedure of the trial customary court which relied on an earlier decision of a customary court which relied on an earlier decision of a customary law. The court further held that customary courts have the duty to declare customary law and that, they are not required to adopt any procedure in doing so.
            The following propositions can be inferred from decided causes on the matter. Before customary courts, customary law is a question of law need not be proved to the court. However, this is only a rebuttable presumption. The presumption can be rebutted by showing: that the law of the court is not the law prevailing in the area of jurisdiction of the court; that the members of the curt are from an area different from the area of jurisdiction of the court: that the area of jurisdiction of the court is so wide that the members of the constituent areas; that the member of the customary curt are for other reasons not versed in the custom sought to be relied upon.
            In the old Bendel State, it has now been statutorily provided that a customary court is presumed to know the appropriate customary court is presumed to know the appropriate customary law of the area within its jurisdiction[31]. In Ogiugo v Oguigo[32] the issues were whether the court of Appeal was right in affirming the judgment of the customary court of Appeal which reversed the findings and statement of what is the appropriate customary law in relation to the instant case, having regard to the provision of section[33](6)  of the customary court Edict of 1984 as well as the provision of order x Rule 6(3),(5) and (6) of the Customary Court rules, 1978: and whether the evidence given by the Oba settled the issues in dispute between the parties, to wit: the customary procedures for the selection or appointment of the Enogie in the peculiar circumstance of this case. While unanimously allowing the appeal, the Supreme Court held as follows.
            According to the applicable law in Edo State, the Area Customary Court has the power to declare the customary law of the area within its, jurisdiction in any particular case before it. If it did so, as in this case, then the customary law so declared is presumed to be cored unless the contrary can be proved in either of the following two cases:
i.                    If the declared custom is shown to be in conflict with any previous subsisting judgment of the High Court, Court of Appeal, or the Supreme Court: or
ii.                 If additional evidence is shown on appeal in the customary court of Appeal and the evidence contradicts the custom so declared.
If neither (i) nor (ii) is available, the declaration by the Area Customary court of the appropriate custom of the area concerned is presumed to be correct and final.
3.7       Proof of Customary Law in Non-Customary Court
            Before English-type courts, customary law is a question of fact to be proved by evidence. A party who alleges the existence of a particular custom must adduce sufficient of the court[34]. Section 14 of the evidence Act that governs the matter provides as follows:
14(1)-A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall lie upon the person alleging its existence.
(3) where a custom cannot he established as one judicially noticed, it may be established and adopted as part of the law governing particular circumstance by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them.
            The requirement of proof of customary law to non-customary courts is based on the assumption that the judges of English-type courts are not versed in customary law. Ordinarily only facts and not law are required to be proved before a court. A court is required under section 73 and 74 of the evidence Act to take judicial notice of a law. However, these provisions do not extend to rules of customary law. The modes of proof of customary law include testimonies of witnesses expert opinions, use of assessors, and use of text books or manuscripts.
3.7.1   Testimonies of Witnesses/Expert Opinions: By section 76 of the evidence Act[35], all facts except the contents of documents may be proved by oral evidence. And in relation to proof of customary law, other relevant provisions of the Evidence Act are as follows:
57(1)- when the court has to form an opinion upon a point of …. Native law or custom …. The opinions upon that point of persons specially skilled in such native law or custom …… are relevant facts … (2) such persons are called experts.
59-indeciding questions of native law and custom the opinions of native chiefs or other persons having special knowledge of native law and custom and any book or manuscript recognized by native as legal authority are relevant.
62(1) when the court has to form an opinion as to the existence of any general customs or right, the opinions as to the existence of such custom or right of persons who would likely know of its existence, if it exists, are relevant.
            By virtue of section 14(1) of the evidence Act, the burden of proof of custom is on the person alleging its existence. In other words, the onus is on the person or party who claims a particular evidence to establish the custom[36].
            In Ibrahim v Barde[37], it was held that by virtue of section 59 of the evidence Act, the court in deciding question of native law and custom, the opinions of native chiefs or other person having special knowledge of native law and custom are relevant.
            Evidence in proof of customary law need not necessarily be oral. In Oyefule v Durosinmi[38] the Supreme Court held that it is trite law that a registered chieftaincy declaration made pursuant to section 11 of the Obas and chiefs law of Lagos state 1981 provides for proof of customary law in relation to the chieftaincy for which the declaration is declaratory of the tradition, custom and usages relating to the selection and appointment to a particular chieftaincy stool and obviate the necessity of proof of oral evidence of such tradition, custom and usages on each occasion that the issue. Arises for determination by the courts.
3.7.2   Use of Books and Manuscripts: Generally, opinions in accepted authoritative books can be cited in support of a submission in court[39]. In relation to proof of customary law, section 59 of the evidence Act provides that in deciding questions of native law and custom, any book or manuscript recognized by the natives as a legal authority is relevant.
            In Ibrahim v Barde, [40], the Supreme Court held admissible, a book called the Abuja Chronicle, which according to some witnesses, is regarded in Suleja as authentic account of the history and culture of the people of the area. For a book to satisfy the requirement or section 59 of the Evidence Act such book must have gained sufficient eminence to warrant it citation to the court. Secondly, the parties should have introduced it into evidence.
            In Adedibu v Adewoyin[41], the plaintiff asked the court for a declaration that the defendant was not entitled to be appointed the Mogaji of the house of which they were both members. The evidence adduced the trial judge on this matter of custom was conflicting and were all rejected. The judge instead the book of ward price entitled the Memorandum of land Tenur in Yoruba provinces. The book was never introduced in evidence by either of the parties. On appeal, the West African of Appeal held that the book was not of sufficient eminence to warrant its citation to the court as an authority. It was also held that section 59 of the Evidence Act requires that a book, which could be relied on, should form part of evidence before the court, or the court itself should call for it and admit it in evidence. There are however, other subsequent cases where the courts considered book not previously introduced into evidence[42].
            However, in Idundun and ors v Okumagba and ors[43], the Supreme Court held that no book shall be accepted in aid to proof of traditional history of ownership of land except if such book is proved to be generally acknowledging either in Nigeria or else were as a standard work or as appropriate authority on the relevant traditional history.
3.7.3   Assessors: The use of assessors is common in Northern Nigeria, but not so in Southern Nigeria. Assessors sit with the judges in order to assist the judges with their expert knowledge of the matter under consideration. They can be considered as experts within the meaning of section 57(2) of the Evidence Act.
            The law normally provides for the use of assessor. Assessors are neither part of the count nor witnesses. They cannot testify before the court. They merely sit with judges and proffer opinion when the court seeks their opinions. Such opinions are normally given in chambers, not in the open court
3.8       Judicial Notice of Customary Law
            Laws are not required to be proved in English-type courts because such court are required to take judicial notice of them. However, to English type courts, customary law. Is initially a question of fact, which must be proved by evidence?[44] Once proved and a judicial notice of it has been taken, it may not be proved again. The position is governed by section 14(2) of the Evidence Act, which provides that:
A custom may be judicially notice by the court if it has been acted upon by a court of superior or co-ordinate jurisdiction in the same area to an extent which justifies the court asked to apply it in assuming that the persons or the class of persons concerned in the area look upon the same as binding in relation to circumstances similar to those under consideration.
This provision has many components. The custom must have bee acted upon by a court of superior or co-ordinate jurisdiction; the earlier court and the subsequent one must be in the same area the custom should have been acted upon to such an extent as would justify the inference that the persons or class of persons concerned in that area book upon under consideration.
            A superior court, (in terms of hierarchy) is not under obligation to take judicial notice of a custom proved before an inferior court. A court can only take judicial notice of a custom acted upon by a superior court or a court of co-ordinate jurisdiction. However, as Prof. Obilade rightly observed, my humble view in addition to his that since a court of Appeal is entitled to apply the land which the lower court is empowered to apply, the court of appeal put itself in the position of the lower court in respect of establishing customary law by judicial notice. Therefore, if the lower court is entitled under customary law to the judicial notice of a custom, the court of appeal is also entitled to take judicial notice of the custom under consideration even though, it has sat as a court of first instance.      
            A court can only take judicial notice of a rule of customary law where the custom had been previously acted upon by a court in the same area. This provision underscores the absence of uniformity of customary law. In Sontos v Okosi industries Ltd and Hnor[45] it was held that the mere fact that a custom was held proved before a Calabar court in Henshaw v Henshaw[46] does not necessarily make it applicable to the people of Epe in Lagos State, in a case brought before the court in that area.
            Professor Obilade[47] is of the view that the words “the same area” in the context of section 14(2) of the Evidence Act mean in the ethnic-group area or Moslem community area within which is contended that the custom applies. The Supreme Court has in Taiwo v Dosum[48] interpreted the phrase “the same area” in which some grounds appear for supposing the customs to be uniforms.
            As noted earlier, for a custom to be judicially noticed, it would have be acted upon to such an extent as would justify the inference that the persons are class of persons concerned in that area regard it as binding in relation to circumstance similar to those under consideration. The pertinent question is how of ten should a particular custom be successfully invoked in court before it would be judicially noticed? Before the Evidence Act was enacted in 1945, the pricey Council had in the gold const case of Asngu v Attch [49] held that the common law doctrine of judicial notice, in its application to customary law as a fact, requires frequent proof in the courts as a pre-requisite of judicial notice. This principle was followed in a number of subsequent cases including those given after the introduction of the Evidence Act[50].
            However, in Cole v Akinyele[51] judicial notice was taken of a custom on the basis of a single decision. In that case, the Bsuc was whether children born outside wedlock to the deceased who died intestate and who was married under the ordinance could share the estate of the deceased with the children of the ordinance-marriage. It was contended that they could because according to the native law and custom of the Yorubas, legitimacy depends on acknowledgement of paternity by the father, and the deceased while alive acknowledged the children as his. In support of the contention reliance was placed only upon the case of Alake v Praff[52] and no other evidence was sufficient evidence to prove it in Alake v Praff.
            Of recent, the supreme court has been singing discordant tunes in their pronouncements on the matter. In a number of cases the supreme court held that a singled decision is sufficient for a custom to be judicially noticed.[53] In Nzekwll and Ors v Nzekwu and Ors[54] Nnamdni JSC who read the leading judgment said:
A custom, if it has been well established in a decision of the superior courts need not be pleaded and proved, but it would be necessary, however, to plead facts and lead evidence to bring the suit in question within the ambit of the judicially noticed custom.

Here, his lordship was specific about establishment of the custom in a previous decision of a superior court.
            On the other hand, the Supreme Court has held in a number of cases that a solitary instance of the application of a rule of custom to the facts of a particular case is not sufficient to confer the requisite notoriety on such a case.[55] Unfortunately, no counsel has in any of the cases drawn the attention of the Supreme Court to the conflicting decisions. It is hoped that the Supreme Court will at the earliest opportunity reconcile the conflicting authorities. It is hereby, suggested that a single decision of a court on a point of customary law which is sufficiently cogent and authoritative, should be enough to enable a court take judicial notice of its existence without further proof.
            Since customary law is dynamic, the question is whether evidence can be led to show that a rule of customary law already judicially noticed is no longer accepted by the people of the area as their custom or has been modified. The answer seems to be in the affirmative. In the old case of Danmole v Dawodu[56] the Federal Supreme court admitted evidence for the purpose of showing that in Lagos the judicially-noticed custom on succession, idi-igi (distribution of estate per stipes) had ceased to be the prevailing custom and had been replaced by ari-ojori (distribution of estate per capita). The court held that idi-igi was still the applicable custom. Consequently in Adeniji v Adeniji[57] it was held that ori-ojori is an alternative applicable custom on the matter.
3.9       Validity of Customary Law
            Ascertainment of customary law is not conclusive of its validity. The various statutes empowering the courts to apply customary law prescribe some criteria for determining the validity of any particular rule of customary law sought to be applied and enforced. The high courts laws of the various States direct the courts to observe and enforce the observance of native law and custom, but only if the particular rule is not repugnant to natural justice, equity and good conscience or incompatible either directly or indirectly with any law for the time being in forced, or incompatible with public policy. For example, the provision to section 14(3) of the Evidence Act provides that “in case of any custom relied upon in any judicial proceeding, it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience”. The combined effect of these two provisions is that the courts cannot enforce a rule of customary law unless the following three criteria are met.
            In the first place, the custom should not be repugnant to natural justice, equity and good conscience; it should not be incompatible either directly by implication with any law for the time being in force; and the custom should not be contrary to public policy. The customary rule may be offensive in three possible areas: in the field of substantive law, in the field of procedure, and in the degree of punishment. We shall now examine how the courts have interpreted the validating criteria.
3.10    The Repugnancy Test:
            A rule of customary law, which is repugnant to natural justice, equity and good conscience, cannot be forced and applied by the courts. But the question is what do we mean by the phrase “Natural justice, equity and good conscience”? In Lewis v Bankole[58], speed J attempted to interpret the phrase disjunctively and give separate meanings to “natural justice”, “equity”, and “good conscience” but the interpretation was rejected on appeal. Niki Jobi J.C.A also examined the phrase, in the case of Mojekwu v Ejikeme.[59] According to his lordship, “the word ‘repugnant’ ordinarily means offensive, distasteful, inconsistent or contrary to: the expression ‘natural justice’ generally means justice according to or pertaining to nature and therefore inborn. Ink Okonkwo v Okagbue[60] the Supreme Court maintained that the courts have not interpreted the phrase “repugnant to natural justice, equity and good conscience” disjunctively. Equity according to the court, in its broad sense, as used in the repugnance doctrine is equivalent to the meaning of “natural justice” justice” and embraces, almost all, if not all, the concepts of “good conscience’. Equity is not used here in its technical sense but in its broad sense. Also natural justice is not used in its modern technical sense, but synonymously with natural law. According to Ezejiofor, “the cases show that the phrase is interpreted to mean fair and just or conscionable”[61]. In other words, a rule of customary law that is unjust, unfair or unconscionable is repugnant to natural justice, equity, and good conscience.
            It must be noted that conformity to the standard of behavior acceptable in advanced communities e.g. the English community does not appear to be the test of repugnancy. Nor will a rule be declared void merely because it is inconsistent with the principles of English law.[62]
            Niki Jobi, J.C.A., made the point more forcefully in Mojekwu v Ejikeme[63] when he said:
            The point should however be made that in the determination of whether a customary law is repugnant to natural justice… the standard is not the principle of English law or English statute. On the contrary, the courts must have an inward look, inward in the sense of Nigeria jurisprudence. Such an indigenous approach, if may use that expression vaguely, will certainly reduce the usual pet expression of the English Judge, “Barbaric” in the description of our traditional jurisprudence, an expression, speed, Ag. C.J freely used in Bankole v Lewis.
Similarly, the Supreme Court in Okonkwo v Okagbue[64] held that the fact that a rule of customary law denies a person a right to which he would be entitled under English law is not in itself sufficient to invalidate that rule.
            Prior to Nigerian independence, most judges in Nigeria were foreigners imbued with self-righteous indignation towards a strange culture that they considered not only inferior but also generally barbarous as evident in the following pronouncement of English Judges: in Laoye v Oyetunde[65], lord wright expressed the view that the repugnancy test was intended to invalidate “barbarous” customs? Lord Atkin in Eshugbayi Eleko v government of Southern Nigeria[66] said that a barbarous custom must be rejected on the ground of repugnancy to natural justice, equity, and good conscience.
            The above not withstanding, there is not doubt that some of our customs are obnoxious and inhuman, and cannot be sustained in modern civilized societies. One cannot therefore accept the views of Professor Abiola Ojo on the matter, which appears to go the extreme when he said:
If it admitted that rules of custom are a reflection of the behavourism of a people a particular area, and I see no escape from admitting this, would it not then be fairer to judge its validity by the local sentiments of right and wrong from any individual legal or social system, but rather from general notions…[67]

The court have not formulated any general theory on which rules of customary law should be based rather, the approach by courts is to adopt a flexible approach and on an old-hoe manner, invalidate or sanction a rate sought to be applied on the basis of their notion what is fair and just.
            In Guri v Hadejia Native Authority[68] the Federal supreme court declared invalid a rule of Maliki law, which forbids a person, accused of highway robbery from testifying in his own defence.
Based on the repugnacy principle, the courts have consistently found for the biological father as opposed to the sociological father in contest for issues of a union or their custody. In Edet v Essien[69] the plaintiff had paid dowry for a union with another man, by who she had two children. The plaintiff at the court alleged that under a rule of customary law, he was entitled to the custody of the children until his dory is repaid. It was held that such a rule of customary law is repugnant to natural justice, equity and good conscience.
            In Okonkwo v Okagbue”, the appellant, as plaintiff, brought a representative action on behalf of himself and his four brothers against the respondents, as defendants, in the High court of Onitsha, the appellant together with four others on behalf of whom he instituted the action namely, (1)Nebolisa Okookwo (2) Obiese Okonkue (3) John Okonkwo and (4) Chinyelugo Ikechukwu Okonkwo were the surviving sons of late Nnonyelugo Nnebuchi Okonkwo of Ogboetu village, Onitsha, who died in 1931. The deceased had two sisters, the 1st and 2nd respondents who survived him but neither of them had any child by their husbands or anyone else.
            On or about 1968, the 1st and 2nd respondents purportedly married the 3rd respondent for and on behalf of their late brother, without the knowledge and consent of the appellant and his four brothers. As a result of this marriage, the 3rd respondent gave birth to six children who all bore the surname of the late Nnanyelugo Nnebuchi Okonkwo and pended themselves as his children. The 1st and 2nd respondents also held them out as the children of their late brother. The appellant had repeatedly made demands and representation to the 1st and 2nd respondents to return the children of the 3rd respondent to the people of late Okagbue and late Obiozo who by the native law and custom of Onitsha should be the fathers of the children, to no avait: the appellant claimed as follows:
(1a) A declaration that under Onitsha native law and customs, the 1st and 2nd defendants by themselves cannot marry the 3rd defendant for their late brother, Nnanyelugo Okonkwo and that the alleged marred is null and void;
(b) That the 3rd defendant is not the wife of late Nnanyelugo Okonkwo.
2. An order of court that all the children of the defendants namely; Ikechukwu, Okwudi, Ujil Victor, Okechukwu, and Obiageli are not the issues of late Nnanyelugo Okonkwo.
3. A declaration that the children (aforesaid) cannot inhent either the real or personal property of the late Okonwo lineage, and or in the alternative, that the children of Okagbue and Obiozo and belong to Ogbeodogwu and Ogboli families according to Onitsha native law and custom.
            At the conduction of the hearing, the learned trial judge dismissed the appellants (plaintiffs) claim. The appellant was dissatisfied with the judgment and appealed to the court of Appeal which affirmed the decision of the trial court. The appellant (plaintiff) further appealed to the Supreme Court. The Supreme Court unanimously allowed the appeal and held that marriage, as it is commonly known, is a union of man and a woman or women. That is to say, between, to physically exist so that the marriage can be consummated. According to the apex court, a custom that allows a woman to be married to a decease man as in the instant case cannot be said to be in good conscience or in accordance with public policy.
In the words of Ogurdare J.S.C.
To claim further that the children of the 3rd defendant had by other man or men are children of Okonkwo (deceased) is nothing but an encouragement of promiscuity. It cannot be contested that Okonkwo (deceased) could not be the natural father of those children. Yet the 1st and 2nd defendants would want to integrate them into his family a custom that permits of such a situation gives licence to immorality and cannot be said to be in consonance with public policy and good conscience … it is in the in test of the 3rd defendant’s children to let them know who their true father are (were) and not to allow them to live for the rest of their lives under the myth that they are children of a who had died many decades before they were born.[70]
In Muojekwu v Ejikeme[71],  the issue was whether the Nnewi custom or ceremony of Nrachi where by a father “plants” his unmarried daughter in his house for the purpose of raising issues for him and which further forbids a widow from inheriting or succeeding to the husband’s estate, is repugnant to natural justice, equity and good conscience. The court of Appeal held that a custom that denies the natural or biological father of his child is certainly repugnant to natural justice, equity and good conscience.
Fabiyi J.C.A who read the leading judgment, in a very forceful and illuminating language said: I must express the point here by which I will continue to stand that human nature, in its most ‘exuberant prime and infinite, telepathy’ cannot support the idea that woman can take the place of a man and be procreating for her father via a mundane custom. She stays in the father’s house and cannot mary for the rest of her life even if she sees on honest man who loves her. I cannot, and do not believe that the society as it is presently constituted, will for long acquiesce in a conclusion so indicrous, ridiculous, unrealistic and mercilless, more especially as we march on into the next millennium. The polity, as presently constituted, cannot, in my view, contain what Nrachi custom stands for. It is not neat. It is not neat. It is an antithesis to that which is wholesome and forward- looking … the custom is perfidious and the petrifying odour smells to high heavens … I have no hesitation in declaring that custom is against the dictates of equity. It is no doubt repugnant and contrary to natural justice, equity and good conscience.

            The facts of Yusufu v Okhia[72] present a different picture in the case, the relations of the deceased wanted to inherit” the widow, but she refused. The widow moved out of matrimonial home and had a relationship with the appellant without having first performed the necessary funeral rites for her deceased husband. The respondent, a brother of the deceased obtained judgment in the lower court against the appellant for adultery. He alleged that the marriage between the deceased and the widow was assisting until the wife performs the funeral rites for her (late) husband. The learned judge on appeal held that a rule of customary law which permits action for adultery after the death of the husband, was repugnant to natural justice.
            As rightly by Dinakin.[73] The decision in this case seems to have ignored the cultural values and the essential nature of customary law. While it is conceded that it will not be proper to force a woman to be “inherited” by her deceased husband’s relations, the same thing cannot be said of requiring her to perform her obligations to her deceased husband except where the obligations are onerous or her refusal to do so is on religions or other justifiable grounds.
            In Eugene Meribe v Joshva Egwu[74]the Supreme Court held where there is proof that a custom permits marriage of a woman to another woman, such custom would be regarded as repugnant. The apex court, in that case, however sanctioned the customary practice where by barren woman procured another woman for her husband.
            Nigerian courts have in recent times condemned strongly customs that discriminate against women. In Mojjekwu v Mojekwu[75], on of the issues that came before the Enugu Division of the court of Apeal was the incidence of “Ali-Ekpe” custom of Nnewi by which a surviving brother of a deceased is by custom allowed to inherit the property of his late brother if the surviving wife has no male issue. According to Niki Jobi, J.C.A,
We need not to travel all the way to Beijing to know that some of our customs including the Nnewi “Oli Ekpe” custom relied upon by the appellant are not consistent with our civilized world in which we all live today, including the appellant. In my humble view, it is the monopoly of God to determine the sex of a baby and not the parents. Although the scientific world disagrees with this divine truth, I believe that God, the creator of human beings, is also the final authority on who should be male and female. Accordingly, for a custom or customary law to discriminate against a particular sex is to say the least such a thing. On my part, I have no difficulty in holding that the “Olit Ekpe” custom of Nnewi, is repugnant to natural justice, equity and good conscience.

            In Nzekwu and 2 ors v Nzekwu and 2 ors[76] the Supreme Court held that the Onitsha person in the life time of his widow is a barbarous and uncivilized custom which should be regarded as repugnant to equity and good conscience and therefore unacceptable. In the recent case of Alajemba Uke and Anor v Albert Iro[77], the appellant at the court of Appeal sought to rely on a a purported custom of Nneato Nnewi under which a woman could not give evidence in land matters. The court of Appeal held that a custom that strives to deprive a woman of constitutionally guaranteed right is Otise. It offends all decent norms as applicable in a civilized society. Pats Acholonu, J.C.A, pungently and poignantly, remarked:
Any customary law which flies against decency and is not consonant with notions, beliefs or practices of what is acceptable in court where the rule of law is the order of the day shall not find its way in our jurisdiction and should be disregarded, discarded and dismissed as amounting to nothing.

            It would appear that the court of Appeal in the above case struck out the custom on the ground of repugnancy without saying so expressly the court quoted with approval the decision of the court of Appeal in Mojekwu v Mojekwu [78] to the effect that a rule of customary law, which discriminates against a particular sex, is repugnant to natural justice, equity and good conscience. In Solomon v Ogbodo[79] it was held that a custom whereby the husband could divorce his wife at will but the wife could not obtain a divorce unless the husband consented was contrary to natural justice.
            From the foregoing, it is evident that the courts have not adopted a general theory of repugnancy. The courts adopted a flexible and case-by case approach to achieve fairness and justice as dictated by time and circumstances.
            It ought to be noted that the question whether a particular custom is repugnant is a matter of law and not fact. It is therefore not necessary to plead that a custom is repugnant. In Okonkwo v Okagbue[80], the Supreme Court held, inter-alia, that counsel in his address to court of the court itself can raise the issue of repugnancy, may raise the point suo motu since it is enjoined to take the law into consideration and apply it in determining whether a particular custom is applicable.
3.10.1 The Incompatibility Test
            As mentioned earlier, various high courts laws enabling the application of customary law, state that a rule of customary law, which is incompatible, either directly, or by necessary implication, with any law for the time being in force cannot be observed or enforced by the courts[81]. The word “incompatible” was judicially interpreted by Niki Jobi J.C.A, in Mojekwu v Ejikeme[82]. According to his lordship, “incompatible is a word which means not compatible, not consistent and contradictory”. His lordship further said that the courts are compelled not to observe or enforce any customary law, which is not consistent with any written law in force.
            While it is easy to determine when customary law is incompatible directly with any written law in force, it is not that easy to determine when a customary law is by implication incompatible with a written law. It is however, a matter of hard of hard law based on the construction of the provision  of the enabling laws. Written law this context necessarily includes local laws , a fortiori, the provision of the constitution, which is the fundamental law of the land.
            In Agbai v Okogbue[83], the plaintiff/ respondent was a tailor by profession and carried on business at Aba. The defendants were members of Abo branch of Umunkalu. Age group of Alayi on 22nd April 1978, the defendants/appellants broke and entered the plaintiff’s shop and seized and carried away his butterfly sewing machine. It was the contention of the defendants that the plaintiff, being a native of Umukala Alayi, was by custom, Obliged to join an age group and that he could not opt out. He was also by that custom obliged to pay all development levies imposed on members by the age group. The defendants/appellants allegedly seized the plaintiff’s sewing machine because he failed to pay the development levy for the purpose of building a health centre in their village.
            The plaintiff contended that he was not a member of the age grade association because his religion for bids him to join. The supreme Court held that any customary law that is contrary to any statute or the constitution of the Federation or incompatible with an existing law in force cannot be enforced by the courts. Hence, the court held that the plaintiff/respondent is entitled to hold to the tenet of his religion, thought and conscience, which prohibit him from joining the age grade. The court further held that any custom that holds otherwise is contrary to the constitution and therefore null and void to that extent.
            It has also been held that an existing native law, and custom may be altered or entirely abrogated by a valid legislation, which is in conflict with it. In Mojekwu v Ejikane Supre, the court of Appeal held that a rule of customary law, which denies women the right of inheritance of the estates of the deceased, is a violation of section 39(2) of the 1979 constitution, which prohibits discrimination on the ground of sex.[84] Such a custom is therefore void. Similarly, in Alajemba Uke and Ahor v Albert Iro Supre, the court held that a custom under which a woman could not give evidence in land matters was incompatible with a written law. This is because, such as custom strives to deprive a constitutionally guaranteed right and it.
            However, the thorny issues with regard to the incompatibility test is whether the phrase “any law for the time being in force” includes the received English law. In Re Adedevoh[85], the West African court of Appeal expressed an Obita view to the effect that any law in force included “the rules of common law”. On the contrary, in Rotibi v. Swage [86] Waddington, J, Observed, obiter dictum that, if a rule of customary law would be declared inapplicable and void if it is found to be inconsistent with an English rule of common law, a principle of equity or a provision of a statute of general application, then it means that there will hardly be any valid rule of customary law left.
            In the recent case of Mojekwu v. Ejikeme supra Niki Jobi, J.C.A expressed the opinion obiter that in the determination whether a customary law is repugnant to natural justice or incompatible with any written law, the standard is not the principles of English law. A similar opinion was expressed in Okonkwo v. Okagbue supra where the Supreme Court, in an obiter, Maintained that by the provisions of section 14 of the Evidence Act and section 20 of the Old Anambra State High Court Law as well as similar provisions in other legislations, the courts have come to recognize the fact that a rule of customary law which denies a person a right to which he would be entitled under English law is not in itself sufficient to invalidate that rule. This accords with another obiter in cuegory Obi Ude v. Clement Nwara & Anor,[87], where Nnemke-Agu JSC said that the common law, doctrines of equity and statutes of general application in force in England on the 1st day of January 1900 ought to apply in the states carved out of the former Eastern Region of Nigeria save in so far as they have been exclusively modified by local legislation, or local customary law. Some recent statutes, have however, to some extent eliminate the doubt in this matter. The customary Court Edict of Anambra State directs the courts it established to apply customary law so far as it is not incompatible with any written law in force. Similar enactments in the former Western and Northern Nigeria and the West Nigeria High Court Law also used the term “written law” in relation to the question of in compatibility.
            Undoubtedly, where the principle of equity of common law have been codified as customary law, as is the case in the old Anambra State, they will quality as written law. These legislations, in any case, have failed to clarify the issue of whether “written law” in this content includes English Statutes. It is evident from the foregoing judicial opinion that the phrase “any law for the time being in force” in the content of the incompatibility test does not include the received English law except where such received English law has been re-enacted as a local law or codified.
3.10.2 The Public Policy Test
            The criterion of public policy was introduced in 1945 when the Evidence Act was first enacted. The Evidence Act, however, failed to define the phrase” public policy”. In Okonkwo v. Okagbue Supra, the Supreme Court maintained that the phrase “Public policy” means the ideas in vogue for the time being in community as to the conditions necessary and ensure its welfare. Hence, a thing will be treated as against public policy if it generally regard as injurious to the public interest.
            The Supreme Court also observed that public policy is not fixed and stable. It therefore, fluctuates with the circumstances of the time. thus, new heads of public policy come into being and old heads undergo modification. In the instance case, the Supreme Court held that to claim that the children the 3rd Defendant had by another man or other men are the children of Okonkwo (the deceased) in nothing but an encouragement of promiscuity. A custom that permits of such a situation gives licence to immorality and cannot be said to in consonance with public policy.
            In the old case of Re-Adedevoh Supra, Verity C.J. Stated thatif a suggested rule of customary law was found to encourage promiscuity intercourse it would be contrary to public policy, and therefore void, but he did not refer to the Evidence Act.
            In Cole v. Akinyele,[88] Brett F.J, delivering the judgment of the Federal Supreme Court, held invalid, on ground of public policy (though without reference to the Evidence Act) a rule of customary law which provides that if the paternity of a child born out of wedlock is accepted, he becomes legitimate and share equally with children born of a marriage contracted Uncler the marriage Ordinance.
            It may be pertinent to mention that the effect of this decision has been mollified by section 41 (3) of the 1999 constitution, which has the effect of assimilating fully into the family, children that might otherwise been considered illegitimate.[89]
3.11    A Human Right Test
            A learned commentator has suggested a new criterion for evaluating customary law, which according to him is more encompassing and premised on universal legal and moral axioms.[90] The suggested criterion is the human rights and fundamental freedoms paradigm as a criterion for the determination of the validity of customary law.
            According to him, modern human right encompass virtually all fields of human Endeavour, and has extended from the traditional civil and political liberties to economic, social and cultural rights, the third and fourth generation rights relating to peace, the environment, and rights of the vulnerable stature of society etc. he maintains that the human rights approach has the advantages of easy ascertain ability, promotion of the general warfare and inherent dignity of man, and creation of awareness of human right and fundamental freedoms.
            The suggested human rights approach can only be an aspect of the incompatibility test because human right are recognized and guaranteed by written law. Moreover, there may be issues which may be considered under the repugnancy and public policy test but which cannot be considered in relation to human rights. Such issues include woman-to –woman marriage, or marriage to a deceased person.
3.12    The Effect of an Invalid Customary Law Rule
            The pertinent question here is what law should apply where the customary law, which should otherwise have applied, fails any of the evaluating criteria. park[91] has made some suggestions in this regard, which are apt and apposite. According to the learned author, where a native law and custom is invalid because of incompatibility with local enactment, then the rule in the latter will apply. If a native custom should apply thus in amgchree v. Kalio[92], the plaintiff’s community claimed under customary, law to be entitled to the exclusive fishing rights in the Kalabari river, and that the defendant community could only fishing purposed was a public or communal right was applied.[93]   

[1]  (1991) 7 N.W.L.R (pt 204) 391 N 416  
[2] (1991) 8 N.W.L.R (pt 209) 280
[3](2001) 11 N.W.L.R. (pt 723) 44 N 52   
[4] (1990) 3 N.W.L.R (pt 137) 137
[5]  For example, see Dang Pam v. Governor of Platerun State (1997) 4 N.W.LR N 4 98) 216.
[6]  (2001) 11 N.W.L.R (Pt 723) 44
[7]  (1988) 2 N.W.L.R (pt 77) P. 445
[8] (1961) 1 NU N.L.R. P. 304 N 309
[9] (1908) 1 N.C.R. P. 81 N 83
[10](1931) A.C 662 N P. 673  
[11] Ojisua v. Aiyebelehin (2001) 11 NWLR (Pt 723) 44 N 52  
[12]Park, w.A.E., Source of Nigeria Law, Sweet and Maxwell London: 1968, P. 68  
[13] (1909) 1 N.L.R. N. 100 see also, Kimdey v. Military Governor of Gongola State and others (1988) 2 N.W.L.R. (pt 77) P. 445
[14] Amodu Tijani v. Southern Nigeria (Seceretary) (1921) 2 A.C P. 399.  
[15] Oshodi V. Balogun (1936) 2 All E.R. P. 1632  
[16] (1990) 3 N.W.LR (Pt 137) P. 182 N 207
[17] Native Authority Ordinance Cap. 140 of 1948
[18] (1944) 17 N.L.R.P. 77
[19] (1992) 7 NWLR (Pt. 254) P. 277
[20] Park. WAE OP, Cit P. 65  
[21] Obilade, A.O. Nigeria Legal System, Sweet and Maxwell, London: 1979 P. 83. See also Ezejiofor, G. “source of Nigerian Law “in Okonkwo, (ed) Introduction to nigeria Law, London: Sweet & Maxwell, London: 1980, p. 14. There her said: “it is relevant to recall that Moslem Law is customary because the Native Courts Law Provides that “native law and custom include Moslem Law”
[22] Section 1 (4) (c) of the Evidence Act, cap 112 LFN 1990 now cap E 14, laws of the federation 2004. However, the equivalent of that section 1 (2) (c) was in serted as amendment, by the Evidence Act (Amendment) Decree 61 of 1991 with retrospective effect to 1st January 1990. (Now cap E 14 LEN 2004)  
[23] See item 23, Part 1, Second Schedule to the 1999 constitution.
[24] (1947) 12 W.AC.A 127
[25] (1961) 1 All N.L.R 842
[26] (1947)12 W.AC.A. 127
[27] “ The Application of customary Law in the Supperior Court of Nigeria”, in 1991 Judicial Lecture: continuing Education for the Judiciary, M.I.J Professional Publishers Ltd, Lagos: 1991, P. 207.  
[28] (1977) NWLR p. 129 N 130
[29] (1961) W.N.L.R. 11
[30](1995)2 N.W.L.R. (Pt. 379) p. 537 N 553
[31] (1997) 4 S.C 11
[32] Order 10 Rules 6 (3), (customary Court Rule of Bended State 1978
[33] (1999) 14 N.W.L.R (pt 638) p. 283
[34] Balogun v. Labiran (1989) 3 NWLR (Pt. 80) P.66; See also, Agbai v. Okagbue (1991) 7 NWLR (Pt. 204) p.391
[35] Cap 112 Laws of the Federation of Nigeria 1990 New cap E. 14 of Laws of the Federation of Nigeria, 2004
[36] Ibid
[37] (1996) 9 NWLR (Pt. 474) 513
[38] , (2001) 7 N.S. Q.R 67
[39] Registered Trustec of Amorc v. Awoniyi (1994) 7 N.W.L.R (pt. 355) P. 154 SC
[40] (1996) 9 N.W.L.R (pt. 474) P.513
[41] (1951) 13 W.A. C.A 191
[42] Ibid
[43] (1979) 9-10 S.C. 220: see also, Suberu v. Sunmonu (1957) 2. F.S.C. 33 and Adeseye v. Taiwo (1956) 1 FSC84
[44] Olagbemiro v. Ajagungbade 111 (1990) 3 N.W.L..R (pt 136) P.34
[45] (1942( 8 WACA 89
[46] (1927) 5 NLR 77
[47] Obilade A.O., Nigeria Legal System, betweet and Maxwell London, 1979 ap. 94
[48] (1966) NMLR 94
[49] P.C. 1874-1928. P. 43
[50] Larinde v. Afiko (1940) 6 WACA 108; Giwa v. Erinmilokun (1961) 1 AUNLR 294 W.P. 296
[51] (1960) 15 WACA 20
[52] (1955) 15 WACA 20
[53] Folami & Ors v. cole & Ors (1990)2 NWLR (Pt 133) P.445 W 457; Agbai v. Okagbue (1991 7 NwLR (Pt 204) p. 391
[54] (1989) 2 NWLR (Pt 104) p. 373. S.C
[55] Oko v. Ntukidem (1993)2 NWLR (pt 274. S.C; Agbabiaku v. saibu (1998) 10 NWLR (Pt 571) P.534; Olagbemiro v. Ajagungbade 11 (19990) 3 NWLR (pt 136) p. 37: Jov v. Dom (2001) FWLR (pt 62) P. 2026.  
[56] (1958) 3 F.S.C 46
[57] (1972) 1 AUNLR @(*
[58] (1908) 1 N.L.R. 81
[59](2061) C.H.R. 179 W 208  
[60] (1994) 9 N.W.L.R. (pt 368) P. 310
[61] Ezejiofor, a “sources of Nigerian Law “in Okonkwo (ed) Introduction to Nigeria Law, Sweet & Maxwell London, 1980, P.43
[62] Rafai V. Igbira NA. (1957) N.R.L.R 178
[63] (2001) 1 C.H.R. 179 N 209
[64] (1994) 9 N.W.L.R. (Pt 368) P. 301
[65] (1994)A.C 170
[66] (1931) A.C 662
[67] Oji A. “Judicial Approach to Customary law”, Journal of Islamic and Comparative Law, vol 3 1969 N P.44  
[68] (1959) 4 F.S.C N P. 44
[69] (1932) 11 N.L.R. 47
[70] (1994) 9 N.W.L.R (pt 368) p. 301
[71] Ibid
[72] (2001) 1 C.H.R. 179
[73] Ibid
[74] (1976) 6 E.C.S.L.R
[75] The Repugnancy clause: A Reappraisal” in Agbede, 1.0. et al. (ed), Current Themes in Nigeria Law, Lagos, Faculty of Law, NUILAG, 1997, P. 145
[76] (1976) 6 E.C.S.L.R. 208
[77] (1997) 7 N.W.LR. (pt 512) P. 283
[78] (2002) 11 N.W.L.R (Pt 723) P. 196
[79] (1989) 2 N.W.L.R. (Pt 104) P. 373 S.C.
[80] (1997) 7 N.W.L.R (Pt 512) P.283
[81] (1974) 4 E.C.S.L.R 457
[82] (19996) 8 N.W.L.R (Pt 468) P.357
[83] (1994) 9 N.W.L.R (pt 368) P. 301 N 321
[84] Section 18 High Court Edit No. 16 of 1987 of the old Anambra State
[85] (2001) 1 C.H.R 179 N 208
[86] (1991) 7 N.W.L.R. (Pt. 204) P. 391
[87] Section 42 of the 1999 Constitution of Nigeria
[88] (1951) 13 W.A.C.A 304
[89] (1944) 17 N.LR. 77
[90] (1993) 2 N.W.L.R (pt 278) P. 638
[91] (1960) 5 F.S.C 84
[92] Seection 42 of the 1999 constitution of Nigeria
[93] Onyekpere, Eze, “Justice for sale” A report of the Administration of Justice in the majistrate and customary courts of Southern Nigeria, civil liberties Organisation, 1996, Lagos, Pp 46-47  


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