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Abstract
This paper examines the issues surrounding the abolition of
the Customary Court of Appeal in some States in Nigeria. In
the discourse, the establishment, jurisdiction and factors
leading the abolition of the Court and the rationale for the
abolition are highlighted. The significance of the Court in the
preservation, protection and promotion of customary law and
the continuous development of customary jurisprudence are
also underscored. The paper ends with some
recommendations aimed at ensuring the continuous
existence of the Court in the States that have established it
and inspiring the States that are yet to establish it to initiate
or complete the process of establishing it.
Introduction
1
Section265(1) and 280(1)
2
ibid. Section 6(h)(i) of the Constitution
3
These States include: Kaduna, FCT, Rivers, Adamawa, Taraba, Ondo, Osun, Ekiti, Abia, Enugu, Imo,
Bayelsa, Nasarawa, Plateau, Delta, Ebonyi, Ondo, Benue, Cross River, Kogi, Imo, Ogun.
4
“Akwa Ibom State Judiciary” (Akwa Ibom)
<http://akwaibomstate.gov.ng/ebudget/031800100100DC.html> Accessed 22 August 2022
5
Adebisi Onanuga, “Wanted-Customary Court of Appeal for Lagos” The Nation (Lagos, 15 December
2015) <http://thenationonlineng.net/wanted-customary-courts-of-appeal-for-lagos> Accessed 22
August 2022; Maritha Ebolosue, “Lagos’ll soon get Customary Court of Appeal, says CJ” Punch
(Lagos, 29 July 2021) <http://www.punchng.com/lagosll-soon-get-customary-courts-of-appeal/>
Accessed 22 August 2022
6
“Elelu-Habeeb Wants Customary Court of Appeal in Kwara”
<http://www.ilorin.info/fullnews.php?id=2565> Accessed 22 August 2022
7
It is noteworthy that both Akwa Ibom and Lagos State have established Customary Courts. Appeals
from the Customary Courts in both States presently lie to their Magistrate Courts. See Section 41(1)
of the Customary Law Cap. 40, Vol.2, Laws of Akwa Ibom State, 2000 and Section 38(1) of the
Customary Law of Lagos State 2015 (as amended). It is opined that this arrangement will not
enhance the proper development of customary jurisprudence as having a CCA would.
8
Simon Ebegbulem & Gabriel Enogholase, “Edo Abolishes Customary Court of Appeal” Vanguard
(Lagos, 23 December 2015) <http://www.vanguardngr.com/2015/12/edo-abolishes-customary-
court-of-appeal/> Accessed 22 August 2022
9
David-Chyddy Eleke, “As Anambra Prepares to Scrap the Customary Court of Appeal” ThisDay
(Lagos, 25 July 2016) <http://www.thisdaylive.com/index.php/2016//07/25/as-anambra-prepares-
to-scrap-the-customary-court-of-appeal/> Accessed 22 August 2022
10
Sections 267 and 282(1) of the Constitution
Section 282 (1) & (2) of the Constitution, which is in pari materia with
section 267 of the Constitution, provides for the jurisdiction of a
Customary Court of Appeal established by a State.11 The import of
section 282 was considered in the case of DANIEL ONWERE V CHIEF C.
NWAZUO & ORS (2012)12 - (quoted below in extenso). While considering
the jurisdiction of the High Court vis-à-vis the CCA, the Court held that:
11
The section provides thus:
(1) A customary court of Appeal of a state shall exercise appellate and supervisory Jurisdiction in civil
proceedings involving questions of customary law.
(2) For the purpose of this section, a Customary Court of Appeal of a state shall exercise such Jurisdiction and
decide such questions as may be prescribed by the House of Assembly of the state for which it is established.
12
LPELR-20838 (CA), Pp. 31-33, Paras. G-C
13
See Note 9
14
Sebastian Ebhuoman, “Edo Abolishes Customary Court of Appeal” Premium Times (Abuja, 11
March 2016) <http://www.premiumtimesng.com/regional/south-south-regional/199988-edo-
abolishes-customary-court-of-appeal.html> Accessed 26 August 2022
15
See Notes 13 & 14
The issue of the restricted nature of the jurisdiction of the CCA, which is
not within the purview of this paper, has been severally adjudicated
upon up to the apex Court.19 The concern revolves around the provision
that the CCA has civil jurisdiction over proceedings “involving questions
of customary law” only. Several authors, writers, commentators and
jurists have lamented that this narrow and restricted Constitutional
requirement is the primary factor stifling the growth of the CCA.20 This
16
Nasarawa State Government scraps Customary Court of Appeal.
<https://premiumtimesng.com/regional/north-central/247014-nasarawa-govt-scraps-customary-
court-appeal.html >
17
Hon. Justice Benedict Bakwaph Kanyip, “Performance of Judicial Officers in Nigeria: The Role of the
National Judicial Council (NJC)” A paper presented during a workshop for newly appointed Judicial
Officers at National Judicial Institute (NJI), Abuja
18
“Governor Sule Swears-In New Judges, Acting President Customary Court of Appeal
<https://www.channelstv.com/2021/01/11/governor-sule-swears-in-judges-acting-president-
ustomary-court-of-appeal/amp> Accessed 25 August 2022
19
See Ben Ikpang & Others v. Chief Sam Edoho (1978) 6-7 SC. 221; Bahang Golok v. Mamhok
Diyalpwan (1990) 3 NWLR (Pt. 139) P.411; Ahmadu Usman v. Sidi Umaru (1992) 7 NWLR (Pt 254)
p.377; Pam v. Gwom (2000) F.W.L.R. (Pt. 1) 1; Subor v. Asemakeme (1997) 4 NWLR (Pt. 502) 617;
Hirnor v. Yongo (2003) 9 NWLR (Pt.824) 77; Nwaigwe v. Okere (2008) 13 NWLR (Pt.1105) 445;
Ozoemena & Anor v Nwokoro & Anor (2018) LPELR 4446 (SC) Pp. 13-22, Paras. A-A.
20
Hon. Justice S. H. Makeri, “Jurisdictional Issues in the Application of Customary Law in Nigeria”
<https://edojudiciary.gov.ng/wp-content/uploads/2016/10/Jurisdictional-Issues-In-The-Application-
Of-Customary-Law-In-Nigeria.pdf>; Hon. Justice Joseph Otabor Olubor, “Customary Court of Appeal
in Nigeria: Focus on the Jurisdiction” presented at the All Nigeria Judges’ Conference, 1995, held at
Kano, Nigeria. 2007 <https://edojudiciary.gov.ng/wp-content/uploads/2016/10/Customary-Court-
It is noteworthy that in 2011, the National Assembly set the pace for
States by granting additional and original jurisdiction to the FCT CCA.
Pursuant to section 267 of the Constitution, the National Assembly
conferred original and exclusive jurisdiction on Chieftaincy Matters to the
FCT CCA. In 2011, the Federal Legislature enacted the Customary Court
Firstly, the States that have established the CCA should take steps
towards seeking an amendment to section 282(1) of the Constitution for
the substitution of the constricted phrase “civil proceedings involving
questions of customary law” with a liberal phrase: “civil proceedings
where the subject matter of the claim is on, or relates to customary
law.” If the 8th Assembly Bill23 containing submissions from the Judiciary,
among which was a proposed amendment to sections 267 and 282(1) of
the Constitution was assented to, the restricted jurisdiction of the CCA
would have been liberalized to accommodate other issues associated
with adjudication in the Court. The CCA would have been able to
entertain all issues on appeal from the decisions of the Customary
Courts in their civil proceedings. It is hoped that the Bill will be
reintroduced to the Federal Legislature and made law someday.
Fifthly, each Judge of the CCA should write his own opinion in each of
the case he sits in, either concurring with or dissenting from the leading
judgment. The Judges’ different perspectives, drawn from the fountains
of their individual knowledge and peculiar experiences, expressed in
their individual resolution of the issues for determination, will further
24
Section 4 Customary Courts (Amendment) Law, 2011. Law No.2 of 2011
25
(1999) 1 NWLR (Pt.588) 521
10
11
12
Conclusion
29 st
(Unreported) delivered on 21 January, 2020
30
Hon. Justice Joseph Otabor Olubor, “Customary Laws, Practice and Procedure in the
Area/Customary Court, and the Customary Court of Appeal” <https://edojudiciary.gov.ng/wp-
content/uploads/2016/10/Customary-Laws-Practice-And-Procedure-In-The-Area-Customary-Court-
And-The-Customary-Court-Of-Appeal.pdf>
13
14