Professional Documents
Culture Documents
BY
1
Customary
Court
have
been
declared
sui
generis.3
What
is
more,
Section
2
(2)
©
of
the
Evidence
Act4
excludes
the
Customary
Court
from
the
courts
chained
to
or
governed
by
the
rules
of
evidence.
By
virtue
of
this
express
exclusion,
judgments
or
proceedings
of
the
court
cannot
be
impeached
on
appeal
on
the
basis
of
lack
of
adherence
to
the
provisions
of
the
Evidence
Act.
With
the
foregoing
as
a
premise,
can
I
not
be
said
to
be
rowing
against
the
tide
or
standing
on
sinking
sand
in
this
discourse
since
admissibility
and
use
of
circumstantial
evidence
is
about
the
provisions
of
the
Evidence
Act?
Whatever
the
answer,
this
treatise
points
the
searchlight
and
compels
intellectual
attention
to
a
tenebrous
or
dark
alley,
and
like
all
adventurers
who
venture
into
strange
or
unfamiliar
terrains,
I
will
either
emerge
with
a
shout
of
Eureka!,
as
did
Archimedes
of
Syracuse,
the
ancient
Greek
scientist,5
or
a
bloody
nose.
I
will
begin
with
a
reconnaissance
of
the
subject
and
then
see
if
the
Customary
Court
system
has
a
helipad
on
which
the
essay
can,
like
a
chopper,
land.
Before
then,
let
me
register
my
deep
appreciation
of
the
Administrator
of
the
National
Judicial
Institute
(NJI),
His
Lordship,
Hon.
Justice
R.P.I
Bozimo
(OFR),
the
Secretary
of
the
Institute,
the
Directors
of
Studies
and
Research
for
finding
me
‘admissible’
in
this
great
institute
as
a
resource
person.
I
am
grateful.
To
amplify
my
Court
of
Appeal
of
a
State
shall
be
superior
courts
of
record.
The
coast
of
Section
6
(3)
has
necessarily
been
expanded
by
the
metamorphosis
of
the
National
Industrial
Court
into
a
superior
court
of
record
by
virtue
of
s.
1
(2)
(a)
of
the
National
Industrial
Court
Act,
2006.
3
See,
DAVID
UDE
&
ORS
v
PETER
OBIOHA
(Unreported)
judgment
of
the
Customary
Court
of
Appeal
Enugu
th
delivered
on
27
September,
2012
in
CCAE/37/2010.
4
Cap.
E14,
Laws
of
the
Federation
of
Nigeria,
2004.
5
On
his
discovery
of
a
method
of
determining
the
ratio
of
weight
in
volume.
See,
The
New
International
Webster’s
Comprehensive
Dictionary
of
the
English
Language,
Deluxe
Encyclopedic
Edition,
page
438.
2
gratefulness,
I
hereby
request,
in
the
tradition
of
Charles
Dickens’
Oliver
Twist,
for
more,
for
a
repetition
of
this
gesture
in
no
distant
time.
My
availability,
I
assure
you,
goes
without
saying.
DEFINITION
Put
in
another
way,
it
is
the
system
of
rules
and
standards
by
which
the
admission
of
proof
at
the
trial
of
a
lawsuit
is
regulated.8
Circumstantial
evidence,
on
the
other
hand,
is
testimony
not
based
on
personal
knowledge
or
observation
of
the
facts
in
controversy,
but
of
other
facts
from
which
deductions
are
drawn,
showing
indirectly
the
facts
sought
to
be
proved.9
It
has
also
been
defined
as
“…evidence
of
6 th
See
Black’s
Law
Dictionary,
6
Edition,
at
page
555.
See
also,
Compendium
of
Law
s
Under
the
Nigerian
Legal
System
at
page
659.
7
(1987)
3
NWLR
(Pt
61)
454.
8
See,
McCormick
on
Evidence,
Edited
by
Edward
W.
Cleary,
at
page
1.
9 th
See
Black’s
Law
Dictionary,
6
Ed.
at
page
243.
3
surrounding
circumstances
which,
by
un-‐designed
coincidence,
is
capable
of
proving
a
proposition
with
the
accuracy
of
mathematics.”10
The
Nigerian
legal
system
received
the
common
law
of
England
at
the
dawn
of
the
20th
century
with
its
doctrine
of
circumstantial
evidence.11
With
that,
the
doctrines
of
res
gestae,
res
ipsa
loquitor,
recent
possession,
and
other
common
law
principles
became
operational
in
Nigeria.
Though
the
Customary
law
courts
were
unaffected
by
this
development,
the
English
type
colonial
courts
applied
such
principles
in
the
resolution
of
criminal
and
civil
disputes
even
before
some
of
the
principles
were
codified
later
in
the
Evidence
Ordinance
of
1945.12
When
they
were,
some
of
the
common
law
principles
codified
as
S.
148
came
into
force
as
statutory
provisions.
These
are
now
contained
in
Section
149
of
the
Evidence
Act13,
which
provides
as
follows:
‘The
court
may
presume
the
existence
of
any
fact
which
it
thinks
likely
to
have
happened,
regard
being
had
to
the
common
course
of
natural
events,
human
conduct
and
public
and
private
business,
in
their
10
Nnamani,
JSC,
in
Joseph
Lori
v
State
(1980)
2
NCR
225
at
229.
11
Section
10
of
the
Provincial
Courts
Ordinance,
1914,
Ordinance
No.
7
of
1914,
Cap.
4
Laws
of
Nigeria
1923
provided
for
the
application
of
the
English
common
law
and
doctrines
of
equity
in
the
Colony
and
Protectorate
of
Nigeria.
Subsequent
legislations
retained
the
provisions.
See,
S.
12,
Protectorate
Court’s
Ordinance,
1933,
S.
14,
Supreme
Court
Ordinance,
1943,
and
S.
30,
Magistrate’s
Courts
Ordinance,
1943.
12
See,
Circumstantial
Evidence
in
Nigerian
Law
by
Andrew
I.
Okekeifere,
at
page
18.
13
Cap.
E14,
Volume
6,
Laws
of
the
Federation
of
Nigeria,
2004.
4
relation
to
the
facts
of
the
particular
case,
and
in
particular
the
court
may
presume
–
a. That
a
man
who
is
in
possession
of
stolen
goods
soon
after
the
theft
is
either
the
thief
or
has
received
the
goods,
knowing
them
to
be
stolen,
unless
he
can
account
for
his
possession;
b. That
a
thing
or
state
of
things
has
been
shown
to
be
in
existence
within
a
period
shorter
than
that
within
which
such
things
or
states
of
things
usually
cease
to
exist,
is
still
in
existence;
c. That
the
common
course
of
business
has
been
followed
in
particular
cases;
d. That
evidence
which
could
be
and
is
not
produced
would,
if
produced,
be
unfavourable
to
the
party
withholding
it;
e. That
when
a
document
creating
an
obligation
is
in
the
hands
of
the
obligor,
the
obligation
has
been
discharged.’
5
which
the
courts
have
continued
to
apply
the
common
law
rules
of
evidence,
direct
or
circumstantial.14
Circumstantial
evidence
is
an
alternative
means
of
proof,
or
one
of
the
three
ways
to
prove,
in
the
case
of
a
criminal
trial,
the
commission
of
a
crime.
It
is
in
full
use.
The
barn
of
case
law
is
full
with
evidence
of
resort
or
recourse
to
it
in
appropriate
cases.
According
to
the
Supreme
Court
in
Ilodigwe
v
The
State15,
“The
prosecution
proves
its
case
against
the
accused
by
all
or
any
of
the
following
means:
(a)
evidence
of
an
eyewitness
of
the
crime;16
(b)
confession
or
admission
voluntarily
made
by
the
accused;
and
(c)
circumstantial
evidence
which
is
positive,
compelling
and
points
to
the
conclusion
that
the
accused
committed
the
offence.”
14
See,
R
v
Ihule
(1961)
1
All
NLR
462.
15
(2012)
18
NWLR
(Pt
1331,
1
at
29-‐30
G-‐B.
16
The
evidence
of
a
lone
eyewitness
is
sufficient.
See,
Adeyemi
v
The
State
(1991)
1
NWLR
(Pt
170)
679
at
694.
6
A
court
resorting
to
circumstantial
evidence
to
ground
a
conviction
must
ensure
that
the
evidence
meets
the
required
standard.
According
to
the
Court
of
Appeal
in
Osuoha
v
The
State17:
7
employment.
On
8th
June,
1994,
the
deceased
disappeared
and
was
never
found
again.
Three
months
later,
the
PW5
reported
that
he
knew
the
deceased
was
killed
by
the
appellant
and
some
other
members
of
the
appellant’s
family
he
could
identify.
He
testified
to
how
whilst
out
fishing
on
the
fateful
night,
he
heard
the
deceased
scream.
On
getting
to
the
scene,
he
flashed
his
torchlight
and
saw
the
appellant
and
the
others.
He
also
saw
the
lifeless
body
of
the
deceased
on
the
ground.
The
appellant
and
the
others
compelled
him
to
take
a
fetish
oath
that
night
to
keep
their
secret
on
the
pain
of
death
should
he
renege.
He
was
ordered
to
leave
after
the
oath
but
as
he
left,
he
overheard
them
say
they
would
tie
weights
on
the
corpse
of
the
deceased
and
throw
it
into
the
Anambra
River
to
avoid
it
coming
afloat.
He
later
fell
ill
and
on
enquiry
was
told
by
his
native
doctor
that
he
was
ill
because
of
an
oath
of
secrecy
he
took.
The
herbalist
performed
a
propitiatory
ritual
to
free
him
from
the
oath
on
the
strength
of
which
he
came
out
with
his
revolting
discovery.
The
defence
could
not
impeach
the
evidence
of
this
witness
resulting
in
the
conviction
of
the
appellant
and
the
affirmation
of
the
conviction
by
the
Court
of
Appeal
Enugu.
On
appeal
to
the
Supreme
Court,
the
court
held
that
“…though
the
evidence
against
the
appellant
and
his
co-‐accused
persons
was
mainly
circumstantial,
as
the
body
of
the
deceased
was
not
found,
it
led
to
the
irresistible
conclusion
that
the
appellant
and
his
co-‐accused
persons
killed
the
deceased.”19
8
others
were
arraigned
for
conspiracy,
murder
and
attempted
murder.
The
case
of
the
prosecution
was
that
one
Mayowa
Adeleye
who
went
to
the
farm
to
deliver
food
to
his
father
never
returned
after
delivering
the
food.
When,
later
in
the
day,
the
parents
could
not
locate
him,
they
raised
alarm
whereupon
a
search
began.
In
the
course
of
the
search,
the
PW2
came
across
one
Sunday
Jegede
in
an
uncompleted
building.
The
PW2
tried
to
search
the
building.
Sunday
resisted
his
attempt
and
called
out
the
appellant
and
other
accused
persons.
Together
they
attacked
the
PW2.
In
the
course
of
it,
the
appellant
brought
out
a
sword
which
they
wanted
to
use
on
the
PW2.
The
PW2
snatched
the
sword
and
escaped
to
their
traditional
ruler.
The
following
day,
the
headless
body
of
a
boy
was
discovered
with
a
piece
of
cloth
covering
it.
The
cloth
had
similar
material
and
design
as
the
window
blinds
in
Sunday
Jegede’s
house.
The
appellant,
Sunday
Jegede
and
two
others
were
apprehended
and
charged
before
the
Ekiti
High
Court.
Before
the
trial
could
commence,
Sunday
Jegede
died
in
prison
custody.
The
appellant
and
the
others
were
convicted
and
sentenced
to
death.
On
appeal
to
the
Court
of
Appeal,
the
court
saw
circumstantial
evidence,
as
did
the
trial
court,
in
the
following
circumstances
or
nuggets
and
snippets
of
proven
facts:
(1)
the
appellant
was
one
of
the
four
persons
that
the
PW2
encountered
in
the
bush;
(2)
he
was
the
one
that
brought
out
the
sword
which
the
PW2
seized;
(3)
the
scene
where
the
PW2
was
attacked
and
where
the
headless
body
of
the
deceased
was
found
covered
with
the
window
blind
of
Sunday
Jegede
were
close;
(4)
the
sword
with
the
appellant
and
lack
of
explanation
of
the
presence
of
the
appellant
and
the
others
in
the
bush
that
night;
and
(5)
the
severance
of
the
head
of
the
deceased
could
only
have
been
caused
by
a
sharp
object
like
the
sword.
9
According
to
UWA,
JCA,
in
the
leading
judgment:
21
(2013)
2
NWLR
(Pt
1338)
235.
10
from
behind
and
shot
himself
with
the
gun;
and
that
the
police
had
to
break
into
the
house
to
gain
access
to
the
corpse
of
the
deceased.
“How
else
does
one
explain
the
fact
that
so
many
persons
were
mentioned
in
the
statement
of
the
accused
persons
who
were
said
to
be
eyewitnesses
to
the
event,
yet
the
prosecution
failed
to
call
any
of
the
witnesses
but
called
witnesses
who
were
not
present
and
could
only
give
hearsay
evidence
that
the
deceased
was
killed
by
the
accused
persons.
The
only
rational
explanation
is
that
if
those
witnesses
had
been
called,
their
evidence
would
have
been
unfavorable
to
the
prosecution.
I
am
of
the
view
therefore
that
the
failure
of
the
prosecution
to
call
any
of
the
persons
mentioned
by
the
accused
persons
in
their
statements
as
having
been
there
at
the
scene
when
the
deceased
rushed
in
and
shot
himself
left
the
issue
of
suicide
open.
As
far
as
the
issue
remains
open
the
circumstantial
evidence
adduced
by
the
prosecution
is
not
so
mathematically
accurate
as
to
point
to
only
one
irresistible
conclusion
–
that
the
deceased
was
killed
by
the
1st
accused
in
collaboration
with
the
appellant
and
the
3rd
accused.”
11
The
above
agrees
with
the
view
of
the
Court
of
Appeal
in
Anyanwu
v
The
State22
where
the
court
held
that:
In
Enebehi
v
The
State23,
the
appellants
were
arrested
at
5.30
am
with
four
expended
cartridges,
torchlight,
three
bundles
of
keys,
a
hammer
and
some
money.
There
were
robberies
earlier
at
night
during
which
the
homes
of
four
victims
were
raided
by
robbers
armed
with
shotguns,
and
hammers
and
who
stole
money
from
them.
The
appellants
made
confessional
statements
but
later
raised
the
defence
of
alibi
during
trial.
The
Court
of
Appeal
affirmed
their
conviction
by
the
trial
court.
On
their
final
appeal,
the
Supreme
Court
dismissed
their
appeal.
According
to
OGEBE,
JSC,
concerning
the
1st
appellant
in
the
leading
judgment:
22
(2012)
16
NWLR
(Pt
1326)
222
at
262
E-‐H.
see
also,
Esai
v
The
State
(1976)
11
SC
39;
Adie
v
State
(1980)
1-‐2
SC116;
Akpa
v
State
(2008)
14
NWLR
(Pt
1106)
72;
Orji
v
The
State
(2008)
10
NWLR
(Pt
1094)
31;
and
Ismail
v
The
State
(2008)
15
NWLR
(Pt
1111)
593.
23
(2009)
170
LRCN
91.
12
“The
1st
appellant
could
not
explain
how
he
came
about
the
keys
belonging
to
the
victims
of
the
robbery
within
hours
of
the
robbery.
He
was
caught
with
the
keys
by
villagers
of
the
neighboring
village
who
had
no
information
of
the
robbery.
All
his
lawyer
is
arguing
before
this
court
is
that
the
keys
were
not
properly
identified
by
the
owners.
There
was
evidence
before
the
trial
court
that
the
PW6,
the
police
witness,
showed
the
keys
to
the
owners
and
they
identified
them
as
theirs.
The
circumstantial
evidence
before
the
trial
court
which
was
also
evaluated
by
the
lower
court
irresistibly
pointed
to
the
guilt
of
the
1st
appellant.”
In
salami
v
C.O.P24
the
Magistrate’s
Court
Ilorin
convicted
and
jailed
the
3rd
accused
person
for
the
offences
of
conspiracy
and
forgery
relying
on
circumstantial
evidence.
The
said
accused
was
a
staff
of
the
Central
Bank
of
Nigeria.
During
a
certificate
verification
exercise,
the
bank
discovered
that
the
Higher
National
Diploma
certificate
in
Public
Administration
presented
to
it
was
forged,
having
been
denied
by
the
Kwara
State
Polytechnic
from
where
he
allegedly
obtained
it.
It
was,
among
others,
revealed
in
evidence
that
at
the
material
time
the
accused
person
claimed
to
have
obtained
his
“Upper
Credit”,
the
24
(2009)
All
FWLR
(Pt
450)
728.
13
Polytechnic
had
not
graduated
any
student
in
the
HND
category
in
Public
Administration!
On
appeal
against
his
conviction,
the
High
Court
affirmed
the
judgment
of
the
trial
court.
On
a
further
appeal,
the
Court
of
Appeal,
Ilorin
Division,
also
affirmed
the
judgment.
According
to
NWEZE,
JCA,
in
the
leading
judgment:
“In
this
case,
the
two
lower
courts
found
the
evidence
of
the
circumstances
of
the
presentation
of
the
forged
certificate
so
cogent
and
compelling.
They
were,
therefore,
right
in
relying
on
such
circumstantial
evidence
in
the
conviction
and
affirmation
of
the
conviction
of
the
appellant
respectively.
I
am
at
a
loss
as
to
how
the
appellant
can
wriggle
out
of
the
angle
which
his
inordinate
craving
for
an
unearned
title
has
landed
him
in.
I
shall
no
longer
temporize
on
this
issue.
I
resolve
it
against
the
appellant.”25
14
guilty
of
malicious
damage
and
sentenced
him
to
one
year
imprisonment
with
an
option
of
fine.
Aggrieved,
he
appealed
to
the
High
Court
Okrika.
Upon
the
dismissal
of
the
appeal,
he
further
appealed
to
the
Court
of
Appeal
where
his
appeal
was
again
dismissed.
According
to
KEKERE-‐EKUN,
JCA:27
15
respondent
in
his
application
to
the
family
did
not
specify
the
number
of
plots
sought
and
that
the
2nd-‐6th
respondents
used
their
discretion
to
grant
to
him
land
they
considered
sufficient
which
was
far
more
than
four
plots.
The
6th
respondent,
in
his
capacity
as
the
family
union’s
secretary
produced
the
1st
respondent’s
alleged
application.
He,
however,
did
not
produce
the
family’s
minutes
book
under
his
custody.
Instead,
he
explained
that
that
his
house
was
burgled
some
days
before
he
gave
evidence
and
that
the
minutes
book
was
among
the
properties
stolen.
At
the
end
of
the
trial,
the
court
held
that
the
appellants
did
not
prove
the
fraud
alleged
against
the
respondents
beyond
reasonable
doubt.
It,
therefore,
dismissed
the
case.
30
See,
Enebehi
v
The
State
(supra)
at
page
153.
See
also,
Obosi
v
State
(1965)
NMLR
129;
Ukorah
v
State
(1977)
4
SC
167
at
174;
Ona
v
The
State
(1985)
3
NWLR
(Pt
12)
236
at
241;
R
v
Taylor,
Weaver
&
Donovan
21
Cr.
App
R.
20
at
21;
and
Nasiru
v
State
(1999)
1
SCNJ
83
at
101,
(1999)
65
LRCN
153.
31
(Supra)
at
7
54
F-‐B)
17
be
inferred
from
the
facts
of
a
case.
This
becomes
even
more
imperative
in
the
case
of
the
offence
of
conspiracy
which
has
secrecy
as
one
of
its
main
ingredients.”
Recourse
to
circumstantial
evidence
has
made
the
arm
of
the
law
long
enough
to
catch
people
who
commit
the
crime
of
theft
even
where
the
particular
item
stolen
or
ownership
of
the
stolen
property
cannot
be
proved
by
direct
evidence.
The
application
of
this
welcome
principle
is
of
distant
antiquity.
In
R
v
Burton32,
it
was
held
that:
“If
a
man
goes
into
the
London
Docks
sober
without
means
of
getting
drunk,
and
comes
out
of
one
of
the
cellars
very
drunk,
wherein
are
a
million
gallons
of
wine,
I
think
that
would
be
a
reasonable
evidence
that
he
had
stolen
some
of
the
wine
in
that
cellar
though
you
could
not
prove
that
any
wine
was
stolen
or
wine
missed.”
The above was adopted in IGP v Ewekay33 where the court held that:
32
(1854)
Dears
282,
284,
169
ER
728,
729.
33
(1957)
LLR
13.
18
As
pointed
out
at
the
commencement
of
this
essay,
the
Customary
Court
was
not
cut
in
the
mould
of
the
conventional
court.
It
is,
therefore,
meet
that
we
concisely
examine
its
features
before
launching
out
into
the
question
of
admissibility
and
usability
of
circumstantial
evidence
therein.
34 rd
See,
Modern
Nigerian
Legal
System,
3
Edition
by
OSITA
NNAMANI
OGBU,
at
page
305.
35
See
Second
Schedule
to
the
Customary
Courts
Law,
Cap.
32,
Laws
of
Enugu
State,
2004
(as
amended
in
2011.)
36
Section
30
of
the
Land
Use
Act
confers
jurisdiction
on
customary
courts
in
respect
of
land
situate
in
non-‐urban
areas.
The
Supreme
Court
has
however
held
in
Adisa
v
Oyinwola
(2000)
10
NWLR
(Pt
116)
that
both
the
customary
Courts
and
the
State
High
Courts
have
concurrent
jurisdiction
in
such
matters.
19
law
(N200,
000.
00),
civil
actions
in
contracts
and
torts
at
common
law
and
customary
law
(N200,
000.
00).37
There
is
a
clear
dearth
of
criminal
trials
in
the
customary
court.
This
is
fallout
from
Section
36
(12)
of
the
Constitution
of
the
Federal
Republic
of
Nigeria,
1999,
which
provides
that
no
person
shall
be
tried
or
punished
for
any
offence
unless
the
offence
itself
and
the
punishment
therefor
are
provided
for
in
a
written
law.
With
most
customary
laws
unwritten,
it
is
not
surprising
that
many
punishable
conducts
(abominations
and
taboos)
under
customary
law
are
not
offences.
Not
helping
matters
is
the
fact
that
legislations
creating
crimes
routinely
confer
jurisdiction
to
try
them
on
the
Magistrate’s
Court
and
the
High
Court
to
the
exclusion
of
the
Customary
Court.
With
the
current
transformation
of
the
customary
Court
in
most
jurisdictions,38
it
is
expected
that
their
jurisdiction
to
try
criminal
offences
would
receive
a
commensurate
boost.
A
leaf
could
be
borrowed
from
the
Customary
Courts
Law
of
Abia
State
which
expressly
includes
in
its
criminal
jurisdiction
offences
such
as
simple
assault,
affray
or
fighting
and
conduct
likely
to
cause
a
breach
of
the
peace.
In
Anambra
and
Enugu
States,
in
addition
to
breaches
of
local
government
bye-‐laws
or
rules
of
statutory
corporations,
the
Customary
Courts
of
those
States
are
vested
with
jurisdiction
to
try
other
offences
committed
in
contravention
of
any
written
law
punishable
by
imprisonment
not
exceeding
two
years.
This
is
a
statutory
carte
blanche
for
the
trial
in
the
Customary
Court
of
simple
offences
and
misdemeanors
contained
in
the
Criminal
Code.
Unfortunately,
Police
Prosecutors
see
criminal
prosecution
as
a
one-‐
37
The
criminal
and
civil
jurisdiction
of
the
court
is
being
remarkably
increased
in
an
ongoing
amendment
of
the
law.
38
In
most
jurisdictions,
Customary
Courts
are
presided
over
by
lawyers
some
of
who
are
qualified
to
be
appointed
as
Magistrates
and
Judges
of
superior
courts
of
record.
20
way
traffic
to
the
Magistrate
Court
in
crass
ignorance
of
the
jurisdictional
competence
of
some
Customary
Courts
over
simple
offences
and
misdemeanors.
What
is
significant
here
is
that
the
customary
court
has
criminal
and
civil
jurisdictions
and
that
its
civil
jurisdiction
extends
to
torts
and
contract.
It
is
also
worthy
of
note
that
its
jurisdictions
in
some
of
these
regards
are
concurrent
with
the
High
Court
(in
case
of
land
matters)
and
with
the
Magistrate’s
Court
(in
case
of
some
actions
in
tort
and
contract).
MODUS OPERANDI
The
Customary
Court,
from
its
position
at
the
base
in
the
stratification
of
courts,
presents
a
virtually
unorthodox
and
somewhat
befuddling
system
of
justice.
Though
modeled
after
the
English
system
of
adjudication,
its
modus
operandi
is
a
far
cry
from
the
technical,
legalistic,
slow
and
rigidly
methodical
system
of
superior
courts
to
which
lawyers
are
mostly
accustomed.
It
is,
in
its
‘methodless’
method,
powered
by
the
spirit
of
simplicity,
expedition
and
economy
both
of
time
and
money.
According
to
E.
N.
NNAMANI,
J,
in
Ikenga
Okoye
v
Chinelo
Okoye:39
39 nd
(Unreported)
Judgment
of
the
Customary
Court
of
Appeal
Enugu
delivered
on
2
February,
2011
in
CCAE/3D/2010.
See,
Principles
of
Practice
and
Procedure
of
Customary
Courts
in
Nigeria
through
the
Cases,
by
Chief
Tom
Anyafulude
at
page
320.
21
procedure
by
which
parties
can
join
issues
in
cases
before
Customary
Courts…”
First
and
foremost,
it
must
be
borne
in
mind
that
(as
aforesaid)
the
provisions
of
the
Evidence
Act
do
not
apply
to
or
govern
proceedings
of
the
customary
court.
The
exclusion
of
the
court
from
the
sphere
of
application
of
the
Act
is
express.40
See
Section
2
(2)
©
of
the
Evidence
Act.
The
Customary
Courts
Rules
of
Enugu
State,
2011,
recognizes
this
position
of
the
law.
See,
Order
10
Rule
1
thereof
which
provides
as
appertain
to
Customary
Courts
that
“In
the
establishment
of
any
fact
or
the
proof
of
the
contents
of
any
document
in
the
customary
Court
of
Enugu
State,
a
party
shall
not
apply
the
provisions
of
the
Evidence
Act.”
In
Ekpa
v
Utong41
the
Supreme
Court
held
that
“Customary,
District
or
Native
courts’
judgments
are
not
to
be
dealt
with
in
the
same
manner
that
any
appellate
court
would
normally
handle
a
judgment
from
the
High
Court
where
pleadings
are
invariably
ordered.
In
dealing
with
judgments
from
customary
courts,
district
or
native
courts,
an
appellate
court
should
not
limit
the
scope
of
the
issue
in
controversy
to
what
appears
on
the
writ,
but
should
go
beyond
it
and
ascertain
from
the
entire
evidence
before
the
court
what
was
really
the
nature
of
the
dispute
and
land
involved.
Technical
procedure
rules
and
the
exactitude
required
in
the
formulation
of
claim
in
the
regular
courts
do
not
apply
to
native
courts.
These
native
courts
are
to
do
substantial
justice
in
terms
of
the
real
issue
in
controversy
as
disclosed
by
the
writ
and
the
40
See,
however,
the
case
of
Israel
Arum
v
Nwobodo
(2013)
10
NWLR
(Pt
1362)
374
where
the
Supreme
Court,
Per
AKA’AHS,
JSC
stated
that:
“It
is
also
necessary
to
stress
the
fact
that
Area
or
Customary
Courts
are
to
be
guided
and
not
to
be
strictly
bound
by
the
provisions
of
the
Evidence
Act.”
This,
it
is
submitted,
has
not
in
any
way
brought
the
Customary
Court
within
the
canopy
of
courts
governed
by
the
provisions
of
the
Evidence
Act.
If
anything,
it
confirmed
that
though
the
court
can
be
guided
by
the
provisions
of
the
Act,
it
nevertheless
remains
excluded
as
it
is
not
strictly
bound
by
the
provisions
thereof.
41
(1991)
2
NSCC
278
at
pages
288
and
289
ratios
3
and
4
22
evidence
without
being
weighed
down
by
technical
rules
designed
for
common
law
courts
and
courts
of
equity
for
ensuring
that
justice
is
done
at
all
times
by
those
learned
in
the
law.”
23
exercising
appellate
jurisdiction
by
virtue
of
this
law
or
any
other
law,
shall
decide
all
matters
brought
to
it
on
appeal
from
a
customary
court
as
substantial
justice
of
the
case
may
require.’43
The
raison
d’etre
for
this
is
not
far
to
seek.
The
customary
court
is
designed
to
be
a
simple
court
where
the
masses
may
ventilate
their
disputes
on
a
judicial
floor
devoid
of
the
slippery
‘banana
peels’
of
technicalities.
It
is,
as
volunteered
by
the
Customary
Court
of
Appeal
Enugu
in
Ozor
Peter
Chukwu
v
Ezeaku
Nwaowelle44
“…
a
court
where
the
lay
litigant
grapples
with
his
equally
lay
adversary
in
an
adjudicatory
atmosphere
devoid
of
the
usually
inhibiting
procedural
legalese
operative
in
superior
courts
of
record.
The
litigants,
as
aforesaid,
are
lay
men,
and
the
registrar,
before
whom
court
processes
are
filed,
only
relatively
better.
Attitude
of
appellate
courts
to
procedural
flaws
in
judgments
of
customary
courts
is,
therefore,
that
of
condoning
as
discernible
in
Ekpa
v
Utong
(1991)
2
NSCC
278…”45
24
1. The
exclusion
of
the
customary
court
from
courts
governed
or
regulated
by
the
Evidence
Act
under
Section
2
(2)
©
of
the
Evidence
Act,
Cap
E14,
laws
of
the
Federation
of
Nigeria,
2004
means
that
judgments
or
proceedings
of
those
courts
cannot
be
impeached
on
appeal
on
the
basis
of
lack
of
adherence
to
the
rules
of
evidence.
2. The
customary
court
is
a
court
of
substantial
justice.
Technical
grounds
of
appeal
arising
from
the
court’s
proceedings,
therefore,
have
no
prospect
of
success
on
appeal.
3. Where
an
error
forming
a
ground
of
appeal
is
not
technical
in
nature,
it
has
no
chance
of
appellate
success
if,
upon
a
holistic
appraisal
of
the
judgment,
it
can
be
said
that
substantial
justice
has
been
done.
See
Section
20
of
the
customary
courts
Law,
Cap
32,
Revised
Laws
of
Enugu
State,
2004.
See
also
Ekpa
v
Utong
(supra).
4. Customary
court
proceedings
are
essentially
sui
generis,
having
its
own
unique
modus
operandi
and
the
effect
is
that
it
is
erroneous
to
subject
the
judgment
thereof
to
the
procedural
niceties,
censors
and
strictures
of
superior
courts
of
record
where
pleadings
are
filed
and
inexorably
followed.
5. Appellate
attitude
to
errors
in
judgments
of
customary
courts
is
permissive
unless
it
can
be
shown
to
have
violated
the
immutable
precepts
of
such
issues
like
jurisdiction
which
is
fundamental
in
the
administration
of
justice,
and
fair
hearing
but
that
is
until
they
venture
into
the
no-‐fly
zone
of
fair
hearing.
When
they
do
this,
the
wings
of
their
decisions
will
be
perforated
by
constitutional
spears
and
arrows
and
the
decisions
will,
however
well
meant,
gravitate
downwards
to
shatter
on
the
clay
soil
of
nullity.
25
which
is
constitutional.
See
Onyia
v
Obete
(unreported
judgment
of
this
court
delivered
in
CCAE/27/10/2010
on
15/12/2010)
In
David
Ude
&
Ors
v
Peter
Obioha47
His
Lordship
expanded
the
ambit
of
these
principles
with
the
addition
of
the
following:
With
the
exclusion
of
the
Customary
Court
from
the
roster
of
courts
governed
by
the
provisions
of
the
Evidence
Act
at
the
back
of
the
mind,
the
temptation
to
conclude
that
circumstantial
evidence
is
not
applicable
in
the
Customary
Court
is
strong.
The
conclusion
will,
however,
be
anything
but
correct.
Circumstantial
evidence
is
admissible
in
the
Customary
Court
as
much
as
it
is
in
other
courts.
To
start
with,
though
Customary
courts
are
not
rigidly
bound
by
the
rules
of
evidence,
they
are
nevertheless,
guided
thereby
as
flows
from
the
position
of
the
Supreme
Court
in
Arum
v
Nwobodo
(supra).
Also,
legions
of
authorities
have
sprouted
and
continued
to
develop
from
superior
courts
of
record
47 th
Judgment
of
the
Customary
Court
of
Appeal
Enugu
in
CCAE/37/2010
delivered
on
27
September
2012.
26
establishing
and
entrenching
applicable
principles
of
law.
While
Customary
Courts
are
not
bound
by
the
provisions
of
the
Evidence
Act
on
the
basis
of
which
these
principles
evolved,
they
are
bound
by
the
decisions,
nevertheless.
CRIMINAL CASES
CIVIL CASES
Civil
cases
offer
in
the
Customary
Court
an
even
more
fertile
soil
for
the
application
of
the
law
of
circumstantial
evidence.
Certain
principles
of
land
law
run
on
the
wheels
of
circumstantial
evidence.
The
Customary
Court
can
make
conclusions
from
inferences
as
may
be
drawn
from
adduced
evidence.
According
to
a
learned
author,
the
use
of
circumstantial
evidence
in
the
customary
law
is
a
systematic
process
of
inferring
from
proven
facts
(the
proof
of
which
might
in
the
past
be
by
27
supernatural
means)
the
existence
or
non
existence
of
the
facts
in
issue.48
I
will
now
consider
some
of
the
areas
which
are
receptive
to
the
law
of
circumstantial
evidence
in
the
civil
procedure
of
the
customary
Court.
Furthermore,
three
out
of
the
five
methods
of
proof
of
title
to
land
are
propelled
by
the
law
of
circumstantial
evidence.
They
are:
positive
acts
of
ownership
extending
over
a
sufficient
length
of
time;
acts
of
long
possession
and
enjoyment
of
land;
and
possession
of
connected
or
adjacent
land
in
circumstances
rendering
it
probable
that
the
owner
of
such
connected
or
adjacent
land
would
in
addition
be
the
owner
of
the
land
in
dispute.49
48
Andrew
I.
Okekeifere:
Circumstantial
Evidence
in
Nigerian
Law
at
page
166.
49
Idundun
&
Ors
v
Okumagba
&
Ors
(1976)
NSCC
445
;
Ayoola
v
Odofin
(1984)
11
SC
120;
Ewo
v
Ani
(2004)
17
NSCQR
36;
Ndukuba
v
Izundu
(2007)
1
NWLR
(Pt
1016)
432;
Adanyi
v
Anwase
(2006)
12
NWLR
(Pt
993)
183;
Nkado
v
Obiano
(1997)
5
NWLR
(Pt
503)
31
at
34;
Nkwo
v
Iboe
(1998)
7
NWLR
(Pt
558)
354;
Chukwu
v
Diala
(1999)
6
NWLR
(Pt
608)
674,
etc.
28
Native
oath
taking
is
a
method
of
circumstantial
evidence
of
ownership
of
land
known
to
customary
law.
HON
JUSTICE
I.
A.
UMEZULIKE
described
it
as
“a
very
popular
and
common
form
of
assertion
of
title
to
land
under
customary
law.”50
According
to
the
jurist:
“In
a
land
dispute
between
A
and
B
wherein
title
is
in
issue
under
native
law
and
custom,
the
matter
is
usually
first
referred
to
a
native
tribunal
panel
called
the
council
of
elders.
Where
evidence
of
both
parties
are
inconclusive,
oath
taking
is
suggested
whereby
both
parties
are
subjected
to
swear
to
one
of
the
local
deities
with
an
invocation
spelling
out
what
would
befall
the
party
telling
lies
or
swearing
falsely
within
a
given
period.
The
party
that
survives
the
given
period
unscathed
is
regarded
as
the
party
to
whom
title
to
the
land
vests.”51
50
See,
the
book
ABC
OF
CONTEMPORARY
LAND
LAW
IN
NIGERIA
(Revised
and
Enlarged
Edition)
at
page
38.
See
also,
CUSTOMARY
LAW
IN
NIGERIA,
by
S.
O.
Tonwe,
J,
and
O.
K.
Edu
at
pages
75-‐77.
51
Ibi
supra.
52
(1996)
12
SCNJ
404
53
(1974)
4
ECSLR
51.
29
the
deterrent
sanctions
of
this
form
of
customary
judicial
process
which
commends
it
alike
to
rural
and
urban
indigenous
courts.”
54
See,
Onyenge
v
Ebere
(2004)
13
NWLR
(Pt
889)
20,
Oparaji
v
Ohanu
(1999)
9
NWLR
(Pt
618)
290,
Oline
v
Obodo
(1958)
SCNLR
298,
and
Edwin
Onodugbo
v
Stanislaus
Odume
(unreported)
judgment
of
the
Customary
Court
of
rd
Appeal
Enugu
delivered
0n
3
April,
2012
in
CCAE/69/2010.
55
See,
Onyenge
v
Ebere
(supra).
56 th
(Unreported)
judgment
of
the
Customary
Court
of
Appeal
Enugu
delivered
on
26
September,
2014,
in
CCAE/53/2014.
30
Appeal
Enugu
saw
no
reason
to
frown
at
the
trial
court
for
making
reference
to
the
said
fatal
oath
in
the
buildup
to
its
eventual
decision.
57
(1930)
AC
1,
7.
58
Preston-‐Jones
v
Preston-‐Jones
(1951)
AC
391.
31
the
biological
father
of
a
child
purported
by
the
wife
to
be
his.
Any
of
these
methods
of
proving
adultery
is
a
circumstantial
evidence
and
is
applicable
in
the
customary
court.
As
a
court
not
tethered
to
technicality,
there
are
situations
and
matters
that
may
arise
from
which
the
Customary
Court
may
make
inferences
and
arrive
at
substantial
justice.
Only
recently,
the
Customary
Court
of
Appeal
Enugu
agreed
with
the
Customary
Court
Ngwo
in
Emmanuel
Ngwu
&
Ors
v
Emmanuel
Ude
&
Ors
59
that
the
refusal
of
elders
of
the
defendant’s
family
to
join
and
the
voluntary
withdrawal
of
certain
members
of
the
said
family
from
the
suit
in
which
ownership
of
the
alleged
family
land
was
in
dispute
pointed
to
the
possibility
that
the
land
did
not
belong
to
the
defendant’s
family.
According
to
the
court:
59 th
Judgment
of
the
Customary
Court
of
Appeal
Enugu
delivered
on
Friday
the
26
day
of
September,
2014
in
CCAE/9/2011.
32
RECOMMENDATION AND CONCLUSION
I
strove
in
this
concise
essay
to
unearth
and
portray
the
applicability
of
the
law
of
circumstantial
evidence
within
the
limited
adjudicatory
universe
of
the
Customary
Court.
I
have
tried
to
show
that
recourse
to
it
is
not
only
necessary
but
also
inevitable
since
it
naturally
takes
the
place
of
direct
evidence
in
certain
cases.
In
States
where
the
criminal
jurisdiction
of
the
Customary
Court
is
unwittingly
or
by
deliberate
official
neglect
restricted
to
breaches
of
local
government
bye-‐laws,
rules
of
statutory
corporations,
etc.,
the
law
of
circumstantial
evidence
finds
scant
application.
Owing
to
that,
there
is
a
crying
need
for
a
quick
boost
to
or
enrichment
of
the
criminal
jurisdiction
of
the
Customary
Court
in
States
where
it
is
poor.
Where
it
is
otherwise,
the
needed
panacea
is
enlightenment
of
the
police
and
other
stakeholders
in
the
administration
of
criminal
justice
on
the
jurisdictional
competence
of
the
Customary
Court.
This
will
not
only
stave
off
the
current
underutilization
of
the
Customary
Courts
but
also
decongest
the
Magistrate’s
courts
which
undeniably
are
overburdened
with
the
high
numerical
strength
of
cases
pending
in
them.
With
lawyers
(some
of
them
qualified
to
be
appointed
Judges
of
superior
courts
of
record)
now
presiding
over
most
Customary
Courts
in
some
States,
adjudicatory
competence
is
no
longer
a
cause
for
concern.
Once
again,
let
me
commend
the
NJI
for
the
enviable
opportunity
to
stand
before
this
esteemed
audience.
I
thank
the
participants
for
their
time
and
rapt
attention.
God
bless
you
all,
my
learned
brothers.
HON. JUSTICE GEORGE CHIBUEZE NNAMANI
33
34