By His Worship Adedeji Adebisi
All Courts of record in Nigeria derive their powers to administer justice from Section 6 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), judges of Customary Courts form part of the system of courts in Nigeria. May I hasten to say that, respective State Houses of Assembly are empowered under aforecited section of the Constitution to establish Area and Customary Courts for the administration of justice at the grassroot level. They are saddled with the duty to administer justice without regard to technicalities and procedures of adjudication; thus, these courts as earlier stated can safely be referred to as grassroot courts. The reason for this is not far fetched, they owe their existence to the fact that they are close to the people and their procedures are not alien to the people.
Moreover, statistics show clearly that almost all cases involving land in the rural areas, marriage, inheritance, guardianship and custody of children are determined by Customary Courts. The society at large, both the educated and uneducated populace need to know that, not approaching a Customary Court for any of above listed matters in deserving situation is an attempt to shortchange themselves. In addition, it is a no-brainer that the bulk of appeals from these Customary Courts often go to the Customary Court of Appeal in states that have this specialised appeal courts. Due to the unique nature of the Customary Court of Appeal, they are naturally positioned to dispense justice faster than any other appeal court imaginable, presumably because they are not swamped in all manner of appeals that have no cognisable customary issue to be decided before them.
Generally speaking, what is the essence of a Customary/District Court? The Black’s Law Dictionary defines District Court as “a trial court having general jurisdiction within its judicial district to hear and determine causes or matters …” I shall simplify this by saying, Customary Courts are courts that are established by individual states to exercise summary jurisdiction over native persons; these courts are to apply native Law and Custom prevailing within their judicial districts in both civil and criminal matters pursuant to provisions made in this regard by the rules of these courts from state to state. They are principally charged with the task of judicially eradicating customs that are repugnant to natural justice, equity and good conscience, when matters relating to these repugnant customs are brought before them. Over time, as a result of consistency in clamping down on these repugnant customs, the people learn to deviate from them and the society generally gets better for it.
In the Southern part of Nigeria, these courts are known as Customary or District Courts while in the Northern part, they are called Area Courts. They have criminal and civil jurisdictions. In civil matters, proceedings before them are governed by the provisions of the Area/Customary Courts (Civil Procedure) Rules, the Area/Customary Courts Law and other relevant laws enacted in various jurisdictions. For example in Ondo State, the relevant laws and rules are, Customary Court’s Law CAP 41 Laws of Ondo State, 2006, Ondo State Court Rules. It is also pertinent to note that, from time to time, the President of the Ondo State Customary Court of Appeal being the head of the Customary Court performs oversight functions over these Courts. The President is empowered to make Practice Directions to supplement any evolving practice deserving of quick direction as to what should be the uniform approach on any issue.
As stated earlier, the Customary Court is a specialised court where specialised matters are attended to. Largely speaking, these specialised matters are matters that have a flavour of custom to wit; matrimonial causes that are custom based, land matters that emanate from land in rural communities and also other related matters. Simply put, Customary Courts are not just courts that everything or any kind of matter can be dumped, so it is right to say that, matters before the Customary Courts are handled in a specialised but simple way.
Specialised courts are manned by judges that have special knowledge and expertise in a particular area of law. This invariably means certain types of cases are handled somewhat differently, possibly even separately from the rest. Judicial specialisation is trending all over the world and in all types of legal systems. Flowing from the above, Customary Courts as specialised courts are positioned to dispense specialised and undiluted justice to the grassroot people that are the principal reason for the establishment of these courts.
WHY DO YOU NEED TO INSTITUTE YOUR CASE IN A CUSTOMARY COURT IN DERSERVING CASES?
- Customary Court judges demonstrate better expert knowledge and efficiency on matters instituted before them. In addition to that, specialisation of judges is increasingly on the rise particularly now that we have lawyers who are experts in specific fields of law. Therefore, instituting your case before the High Court or Magistrate Court where they attend to all manners of cases and the judges are not specialised is tantamount to shortchanging ones’ self of access to undiluted justice;
- The brazen show of the merit in instituting matters before the Customary Court is that, when cases that are founded on customs are diverted to Customary Courts, the burden of growing caseloads in the regular courts will be reduced, and conversely this also positively impacts on the operations of the regular courts;
- Customary Courts as specialised courts in their usual summary manner of adjudication conduct trials and dispense with them faster, the fact that they are specialised court even as they move with the speed of light, their adjudication leads to better decisions, better outcomes for the litigants, and greater user satisfaction;
- Customary Courts as specialised courts with exclusive jurisdiction over particular areas of law enhance uniformity of decisions in those areas, thereby contributing to greater predictability and confidence in the courts, and possibly reduced appeal rates. Parties can easily juxtapose their own cases with cases that have been decided by the court earlier to predict the possible outcome of theirs if they go to trial, this opens the door for settlement out of court ahead of trial;
- The fact of the matter is that, the courts mentioned expressly in Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) are all usually established and located in the urban cities. They are almost always approached by the elites of the society, proceedings before them being mostly understood by the elites. Indeed, more often than not, it is the elites who can afford any of these courts not so much in terms of courts fees but as it relates to the cost of obtaining and retaining the services of Legal Practitioners. Customary Courts are courts that even an illiterate can easily understand the proceedings there and handle their matters themselves if securing the service of a lawyer becomes burdensome;
- States, through their respective Houses of Assembly are empowered to establish Area and Customary Courts for the administration of justice at the grassroot, free from the technicalities of the common law. These courts, as earlier stated, can safely be referred to as the grassroot courts. This is because they are close to the people and their procedures are not alien to the people. To give credence to the above, statistics show clearly that almost all cases involving land in the rural communities, marriage, inheritance, guardianship and custody of children are determined by Customary Courts;
- Even petty cases have a way of damaging relationships, tarnishing reputations, and eating up enormous sums of money, time, and talents. Smart people know that these overhead burdens are also increasingly avoidable. The Customary Courts are better positioned to explore many alternatives to litigation that can nip lawsuits in the bud, resolve long-standing disputes between communities and families; and even produce win-win solutions to old and bitter disagreements that would otherwise only leave both sides damaged;
- The general informed public should prefers having their matters determined by the Customary Court because their procedures are simpler and cheaper compared to the conventional and common law courts, the courts are also located close to the people, the need by witnesses and parties to travel to the cities with respect to prosecuting their matters is needless;
- Although, judges of other courts can issue protective orders covering legally qualified traditions, customs, trade secrets, much valuable proprietary information cannot be protected in a trial. Moreover, any hearing in a public forum can lead to embarrassing revelations of business and personal behaviour, with predictable and not-so-predictable adverse effects on families, customers, suppliers, shareholders, employees, news media, and even legislative and regulatory bodies. However, Customary Courts being the court of the grassroot is better positioned to protect these secrets, traditions and more valuable information during trials because of the relaxed manner proceedings are conducted. Media practitioners and journalists are not likely to be in these courts during trials and even if they are there, they are likely not to be able to pick core traditional secrets, as they are likely to be said in native language of the people, even if it will be translated, the secrets must have been watered down;
- In the relatively rare case where two parties find themselves in basic agreement about the facts and disagree only about the law, summary judgment by a Customary Court in a lawsuit may actually be the quickest way to settle. But other courts holding unto high level of technicality usually do not meet anyone’s need for a quick resolution in this regard;
- Customary Courts are Courts where parties can largely advocate without the assistance of a lawyer, from experience, lawyers complicate simple matters for reasons best known to them in many cases. Cases that are completely under the disputants’ control without the interference of legal practitioners are settled faster; these are much more obtainable in the Customary Courts;
- Complexity comes in different shapes and sizes, of course factual, legal, multiparty, and various combinations of the three. The Customary Courts work well in cases of factual and legal customary complexity and also lend itself well to multiparty custom based disputes;
- It is cheaper to advocate before a Customary Court;
- It is easier to stand on existing precedent on related customary law matters, if you file your case before a Customary Court rather than filing it before a regular court that might depart from precedent;
- They are more sensitive to the context of family violence and the needs of victims through specialised training and skills of staff;
- They have greater integration, coordination, and efficiency in the management of cases through identification and clustering of cases into a dedicated list, case tracking, and inter-agency collaborations;
- They have a higher degree of greater consistency in handling of family violence cases both within and across legal jurisdictions;
- They have greater efficiency in court processes;
- They have over time developed best practices, through the improvement of procedural measures in response to regular feedback from court users and other agencies;
- They produce better outcome in terms of victim/litigant satisfaction and victim safety.
Customary Court’s importance in our legal system cannot be overemphasised. This is so because, these courts procedure and proceedings are simple and not alien to the rural people and almost all cases involving marriage, succession, inheritance, guardianship, custody of children, land matters in the rural areas and even some contractual relations are meant to be determined by the Customary Courts. Also, these grassroot courts are not courts that allow technicalities to override substantial justice. For instance, if certain technicalities are likely to cause hardships, the court will disregard them if the end of justice will be met; the unmitigated import of the above is that, the Customary Court is better positioned to dispense justice, simpliciter. Again, these courts are also important because they ensure that even those in rural areas and the less privileged get access to justice in a country like Nigeria where majority of the populace live in rural and unsophisticated communities.
On the pain of emphasis, this is a clarion call on parties and lawyers not to hesitant to file their cases before a Customary Court, and as well institute their appeals before the Customary Court of Appeal in any matter that has a touch of custom. There can be no speck of controversy that, the Customary Court is better positioned to dispense quick, quality and ground breaking justice; especially in Ondo State where we currently have Legal Practitioners presiding on the bench of the Customary Court. It is not productive or profitable to fish for jurisdiction in other courts on matters that the Customary Court can as well exercise jurisdiction upon.
His Worship Adedeji Adebisi, HND(TRP), LL.B (Hons.), B.L, LL.M (Hons.) is the Presiding judge of a Grade “A” Customary Court and the Special Duties Officer to the President, Customary Coury of Appeal, Ondo State.