Customary Courts in some cases are also known as Native Courts. Customary Courts are established where necessary under the relevant state law. It is pertinent to note that every Customary Court is a court of record. They exist in all the states of Southern Nigeria. It is submitted without fear of ambiguity that the rationale for the existence of Customary Courts in Southern Nigeria is to do substantial justice in consonance with the customs and tradition of the people. This was judicially endorsed in the case of Arum v. Nwobodo (2004) 9 NWLR (Pt. 878 ) 411 where the court espoused the principles governing proceedings of Customary Court as follows: “The cardinal principle governing the Court’s proceeding is the attainment of substantial justice based on the reasonable practice, tradition and custom of the local people.” A cardinal question which we intend to answer is, does the Evidence Act 2011 actually apply to judicial proceedings in Customary Courts? The answer to this question can only be properly adumbrated with proper reference to the evidence Act itself. It is submitted without any fear of contradiction that the provisions of the Evidence Act itself, determines with utter finality the Courts, where the Evidence Act applies. Against this background, it is pertinent to examine the Evidence Act with a historical perspective. Consequently, a reference to Section 256 (1)(a)(b) and (c) of the Evidence Act is fundamental. The provision is herein reproduced in extensio: “(1) The Act shall apply to all judicial proceeding in or before any court established in Application, the Federal Republic of Nigeria but it shall not apply to — (a) proceeding before an arbitrator; (b) a field general court martial; or (c) judicial proceeding in any civil cause or matter in or before any Sharia Court of Appeal, Customary Court of Appeal, Area Court or Customary Court, unless any authority empowered to do so under the Constitution, by order published in the Gazette, confers upon any or all Sharia Courts of Appeal, Customary Courts of Appeal, Area Courts or Customary Courts in the Federal Capital Territory Abuja or a State, as the case may be, power to enforce any or all the provisions of the Act.” By virtue of Section 256(1)(c) of the Act, the Evidence Act applies to the Customary Court of Appeal, Sharia Courts of Appeal or Area Courts, only when any authority empowered to do so under the Constitution, by order published in the Gazette confers power on the courts to enforce any or all the provisions of the Evidence Act. The Supreme Court of Nigeria took this view in the case of Adeyemi Ogunnaike v. Taiwo Ojayemi (1987) NWLR (Pt. 53)760 when it held, Per Obaseki J.S.C. (as he then was) thus: “It is erroneous to argue that the provisions of the Evidence Act applies to Customary Court when the Evidence Act has expressly excepted the application of the Act from judicial proceedings before a Native Court.” The Supreme Court of Nigeria had no difficulty in restating this position of the law with certainty in the case of Chief Awara Osu v. Ibor Igiri & 3 Ors. (1988) 1 N.W.L.R., Pt. 69, 221. Belgore J.S.C. (as he then was) delivering the leading judgment held: “Customary Courts are not bound by Evidence Act unless subsequently so conferred with the power to apply it” The position of the law today as can be clearly gleaned from the foregoing is that the Evidence Act is not absolutely inapplicable to Customary Courts in Nigeria, same is only inapplicable in civil cause or matter before Customary Court in Nigeria, subject to the conferment of its applicability by any authority empowered to do so under the Constitution, by order published in the Gazette. It is also submitted that the clear provisions of the Evidence Act 2011 in S. 256(2) and (3) which states thus:“(2) In judicial proceeding in any criminal cause or matter, in or before an Area Court, the court shall be guided by the provisions of this Act and in accordance with the provisions of the Criminal Procedure Code Law. (3) Notwithstanding anything in this section, an Area Court shall, in judicial proceeding in any criminal cause or matter, be bound by the provisions of sections 134 to 140, which is on burden of proof,” invokes the entire provisions of the Act to guide and guard judicial proceedings in criminal cause or matter before Area or Customary Courts. This does not make the provisions of the Act to apply in such matters, rather, it assist the court to a good path to criminal justice. The provisions of the Act that the Area or Customary Courts is bound to apply in criminal cause or matter are Sections 134, 135, 136, 137, 138, 139 and 140 which deals with burden of proof. Due to the importance of these sections in the administration of justice, they have to be made binding. O. G. Orji Esq. LL.B, BL., LLM. in view.]]>
![](https://thenigerialawyer.com/wp-content/uploads/2024/11/TheNigerialawyer-WhatsApp-Channel1.jpg")
Interested buyers are encouraged to place their orders and enquiries via:
0704 444 4777, 0704 444 4999, 0818 199 9888
Website: www.alexandernigeria.com
Reimagine your practice with the power of AI “...this is the only Nigerian book I know of on the topic.” — Ohio Books Ltd
Authored by Ben Ijeoma Adigwe, Esq., ACIArb (UK), LL.M, Dip. in Artificial Intelligence, Director, Delta State Ministry of Justice, Asaba, Nigeria.
Bonus:
Get a FREE eBook titled “How to Use the AI in Legalpedia and Law Pavilion” with every purchase.
How to Order: 📞 Call, Text, or WhatsApp: 08034917063 | 07055285878 📧 Email: benadigwe1@gmail.com 🌐 Website: www.benadigwe.com
Ebook Version: Access directly online at: https://selar.com/prv626
_______________________________________________________________________ [A MUST HAVE] Evidence Act Demystified With Recent And Contemporary Cases And Materials
______________________________________________________________________
“Bridging Theory And Courtroom Practice” — Hagler Sunny Okorie, Nathaniel Ngozi Ikeocha Unveil ‘Functional’ Tort Law Book For Nigerian Legal System
The book, titled The Law of Torts in Nigeria: A Functional Approach, authored by Professor Hagler Sunny Okorie Ph.D and Ikeocha, Nathaniel Ngozi Esq, offers law students, practitioners, and academics a comprehensive guide to understanding and applying tort law in Nigerian courts. Interested buyers can place orders via the following contact numbers: 08028636615, 08037667945, 08032253813, or +234 902 196 2209.
