Customary Law Notes

Inter Tribal Conflict of Customary Laws

  • (a) Land Matters: Customary law of the location of the land.
  • (b) Inheritance: Customary law applying to the deceased.
  • (c) Court shall apply:
    • Intended customary law or deemed intention.
    • Absence of intent: customary law of where the action arose.
  • If customary law cannot be ascertained: Principles of justice, equity, and good conscience.

Ascertaining Customary Law in Courts

  • Section 11 of CLA: Consult reported cases, textbooks, and other sources.
  • Section 12 of CLA: Special recognition of certain statements as prima facie evidence.
  • President empowers declarations via Gazette statements of customary law as prima facie evidence.

Jurisdiction

  • Civil Jurisdiction:
    • Arising out of customary law or written law.
    • Defendant resides or cause of action arose within jurisdiction.
    • Value does not exceed maximum amount.
  • Criminal Jurisdiction:
    • Determined by warrant relating to offences within court's area.
    • May be increased by presidential order.
    • Court may be guided by Penal Code.
    • Offence must be created by Penal Code or written law.
    • Sentence shall not exceed warranted limit.
    • Prosecution by entitled person under customary law, DPP, or authorized person.
  • Excluded Offence
    • Offences listed in s 13 of CCA (treason, capital offences, rape, bribery, company law/insolvency offences, etc.).
    • Offences relating to witchcraft without DPP consent.

Rules of Procedure

  • Criminal trial must follow Customary Courts (Procedure) Rules – s 21 CCA.
  • Practice and procedure regulated by customary law – s30 CCA.

Exclusion of Audience

  • Advocates/attorneys excluded in CC – s32 (a) CCA.
  • Excluded in magistrate’s court determined by CL – s32 (b) CCA (Transfer of cases, Revisory powers and Appeals) , unless special permission is granted.

Transfer of Cases – s37 CCA

  • Party demands transfer: proceedings suspended, reported to Customary Court of Appeal (CCA) – s 37 (1) CCA.
  • Unreasonable delay: report to CCA – s 37 (2) CCA.
  • CCA may transfer to another CC or magistrate's court – s 37 (3) CCA.
  • Transferred court starts proceedings afresh – s 37 (4) CCA.
  • Unauthorized adjudication: fine (not exceeding P100) or imprisonment (not exceeding 12 months) or both – s 33 CCA.