By Emmanuel J. Samaila, Esq.
The vast number of people whose lives are regulated by customary law underscores the significance of the law in the administration of civil justice in Nigeria. Notwithstanding the fact that dispute resolution mechanisms exists in all customs, an expanding percentage of aggrieved persons bound by customary law approach the Customary Courts in search of remedies for their injuries and/or clarification of ambiguities in the interpretation and application of the law. This article highlights the peculiar features of some of the subject matters which constitute the bulk of the growing caseloads of Customary Courts in Nigeria. Understanding these peculiarities will aid a litigant’s and/or his counsel’s quest for justice in the Customary Courts, besides providing a springboard for framing permissible and proper grounds of appeal.
Keywords/phrases: Customary Courts, Customary law, Civil litigation.
Customary law, which forms the nub of the laws administered by Customary Courts , is not codified and is distinct from “common law principles with their characteristic certainty and ossification.” This fact, coupled with the specialized nature of the court, makes civil litigation in the Customary Courts a challenge to some legal practitioners who are more conversant with the contours of practice in the superior Courts. As courts of summary jurisdiction established to administer substantial justice , Customary Courts have peculiar principles which are markedly distinct from the more familiar common law principles. A legal practitioner who intends to successfully litigate a matter at the Customary Court must painstakingly seek to understand not only the nature of the court but also the dynamics of litigation therein.
SELECTED SUBJECT MATTERS
In order to achieve the aim of this article, some of the peculiarities of litigation in the Customary Courts are examined vis-à-vis the relevant and applicable statutory laws, rules of court and judicial authorities. It is safely assumed that every State of the Federation that has the trial and appellate Customary Courts will necessarily have materially corresponding laws and rules as the ones in Kaduna State and also judicial decisions that reflect the peculiarities of the customary laws of the ethnic, tribal, and linguistic groups within their territorial jurisdiction.
Generally, a counterclaim is filed by a defendant as mere denial of a plaintiff’s claim cannot entitle him to any relief he desires as an outcome of the dispute. Moreover, it is trite that the Court is not a Father Christmas to grant a claimant what he never sought. Filing a counterclaim is one of the ways by which a defendant is prevented from springing surprises during the pendency of a matter.
However, in civil trials in the Customary Courts, especially in a case for declaration of title, a party does not have to expressly state that he is making a counterclaim. Neither is it a requirement that a counterclaim must be filed as a mere denial of a plaintiff’s claim automatically constitutes a counterclaim. In the case of Godfrey Joshua v Bankwot Suhu , the Customary Court of Appeal, Kaduna held thus:
We have in several, decisions of this Court, maintained that a Counter-Claim to be specifically filed and said in a Claim for a declaration of title to land is alien in Customary adjudication. That this is a common Law concept. In the case of MONDAY DANLADI Vs SAIDU INUSA & 1OR, delivered on 16th day of November, 2017, Pp.17, this Court stated as follows:
‘We wish to reiterate that, once a defendant denies a claim against him, especially in a claim for a declaration of title to land, and led evidence to defend the claim, that constitutes a counter-claim under Customary adjudication.’
See also CCA/KAD/KAF/23A /2017, Maitala S. Anguru & Ors vs Aweh Awezu, delivered on 24th day of July, 2017. [Editor’s Note: This case was reported as Angulu & 2 Ors. vs. Awezu & Anor. (2017) KCCLR-99 (CCA)].
Once in a claim for a declaration of title to land, the defendant denies the claim and says the land belongs to him, that constitutes a Counter-claim as he wants title be declared in his favour not to the plaintiff. In the case at hand, the appellant on page 1 of the record of proceedings stated his claim through his Counsel as follows:
‘The plaintiff is suing for declaration of title. The land is presently been cultivated by the defendant and the land in dispute belong (sic) to the plaintiff.’
The defendant there and then denied the claim and said:
‘I heard their claims, I denied liability, and it is not true, the land belong (sic) to me.’
From the foregoing, it is very clear and obvious that the respondent was contesting the claim and saying that the land is his. Does that not constitute a Counter-Claim? By the fact that the respondent did not mention the word Counter-Claim, but for him to say, the land is mine, it means he is claiming the said land as well. The authorities cited by the appellant Counsel Supra – ADEMETAN Vs I.T.R.C.G and F.M.N.L Vs OGUNBAYO, that the Court is not a Father Christmas as it cannot give what is not asked for. That is the correction, position, but the facts of those cases are quite different. Hence, it is our humbly view that those authorities are not relevant with the case at hand.
In view of the foregoing, it is an exercise in futility for a counsel to contest on appeal that a trial Customary Court erred in entering judgment for a party who never made a counterclaim. Rather, in addition to presenting a cogent and credible case for the plaintiff, a diligent counsel ought to pay close attention to the evidence of the defendant’s witnesses in order to effectively impeach it or discredit the witnesses and thereby weaken or dislodge the counterclaim. Above all, a party is expected to succeed on the strength of his case, not on the weakness or absence of a defendant’s case.
It is noteworthy that Customary Courts are expected to consider the whole case of the parties in order to distil the real dispute between litigants and determine them. In the case of Angulu & Ors v Awezu & Anor., the Customary Court of Appeal, Kaduna, per Maza, JCCA, held thus:
In trials in customary courts, the courts are not confined to the statement or particulars of claim filed by the parties before the courts in order to determine what are the real claims of those parties before the court. The trial courts are enjoined to carefully scrutinize the entire proceedings to ascertain what the real subject matter of the case and the real issues raised therein are. Consequently, it is permissible, not only to look at the plaintiff’s claim before the customary court, but also to study the findings, and even the evidence given or tendered before such customary courts with a view to identifying the real issues between the parties in the suit. See the case of ERHUNMWUNSE VS EHANIRE (2003)13 NWLR (Pt. 837) 353 at 377, paras G-H. See also the unreported decisions of this Court, particularly in the cases of CCA/KAD/KAF/58A /2016: NAYI AMOS & 1 OR VS PHILIP ANDREW & 1 OR, decided on 13th February, 2017, CCA/KAD/KAF/7A /2015: MUDI ADO VS ISHAYA GAMBO, decided on 18th September, 2015 and CCA/KAD/KAF/24A /2014: BITRUS AUTA VS CALEB GARBA & 1 OR, decided on 30th September, 2014.
The foregoing position of superior courts on the nature of proceedings in the Customary Court further enhances the simplicity which is supposed to be one of the hallmarks of litigation and adjudication in the Customary Courts. The fact that some Customary Courts are presided over by legal practitioners and members of the Bar litigate matters therein does not change the fundamental nature of Customary Court.
Ordinarily, the burden of proof in civil litigation alternates between the parties both of whom are bound to establish their claim or defence by credible and admissible evidence which the court will evaluate vis-à-vis applicable laws to determine the dispute between them. However, in civil adjudication in the Customary Courts, the parties may opt for their matter to be determined via customary arbitration, particularly by oathtaking and the outcome will determine the matter before the Court. Parties’ resort to oath-taking is a different procedure from a referral to arbitration by the Customary Courts suo motu. The effect of litigants’ agreement to be bound by the outcome of the oath-taking effectively makes the common law principles in respect of proof of title to land inapplicable. This principle is explicated in the case of Onyenge & Ors v Ebere & Ors wherein the Supreme Court considered the issue of customary arbitration (oath-taking) in the resolution of dispute over a piece of land. The court per Tobi JSC, stated that:
I find it difficult to go along with counsel in his submissions bordering on the common law. One of such submissions is the rule, or should I say principle, that possession is ninetenths of ownership. The other is on principles of law governing proof of title to land. I think this is what counsel means by his submission that the burden is squarely on a party claiming declaration of title to adduce credible and admissible evidence in support of the title. I think it is good law that in arbitration under customary law, the applicable aw is customary law and not common law principles with their characteristic certainty and ossification.
In the case of Ume v Okoronkwo & Anor., the Court categorically stated that ‘Oath taking was one of the methods of establishing the truth of a matter and was known to customary law and accepted by both parties.’
However, it is improper for a Court to suo motu require a party to take an oath as a substitute for the evidence in a matter and subsequently give judgment against him for refusing to take such oath. In the case of Kwassam v Kwassam  the Customary Court of Appeal, Kaduna held thus:
From the record of proceedings before us and the evidence adduced, the trial Court had enough evidence before it to decide this matter rather than calling on the plaintiff/respondent to swear with the Holy Bible in order to be conferred with title. Oath taking to decide a Customary adjudication is a feature under Customary arbitration. Also it is wrong and improper for a Customary or Area Court to give judgment to one party simply because he was ready to take oath and deny judgment to another party simply because he has refused to take oath. See MUNTIYA CHIGA VS INUWA UMARU (1986)3, NWLR (PT 29) 460, MUSA SINSINI VS PAM DUNG (1988) 1-2 PCCAMLR 35-36.
However, we completely agree with the submission of the appellant counsel that the trial Court was in serious error to have asked the plaintiff/ respondent to swear with the Holy Bible despite the overwhelming evidence before it. We endorse the submission of the learned counsel in respect of Grounds 2 & 3 argued together and same is allowed.
At any stage during the proceedings in the Customary Court, for instance in a dispute over the ownership of a piece of land, a party may make an application asking his adversary to swear an oath of ownership in accordance with their custom and he will abide by the outcome. If the other party objects to the application, the Court will proceed with the matter.
However, where the respondent expresses his willingness to take the oath, the Court will inquire from the parties certain details about the oath to be taken. These may include: the person who will take the oath; the person who will administer the oath; the expected consequence of taking the oath; the duration of time within which the effect of the oath is to manifest or the oath is to last. If the parties are at consensus ad idem on these issues, the Court will adjourn the matter for report from the oath administrator. Such a person, who becomes a witness for the Court, will be cross-examined by the parties. Thereafter, the Court may either enter judgment based on the report or adjourn to a date beyond the period within which the expected consequence is expected to befall the oath-taker if the land does not belong to him.
Customary Arbitration Creates Estoppel
Unknown to some parties and their counsel, the decision of customary arbitrators creates estoppel. In Agu v Ikewibe, Karibi-Whyte, JSC, in the leading judgment, stated that:
There seems to me some misconception about some of the provisions of the Constitution 1979, and the freedom between disputing parties to settle their difference in the manner acceptable to them. It is clearly unarguable that the judicial power of the Constitution in s.6(1) is by s.6(5) vested in the courts named in that section. Not so a customary law arbitration as an arbitration in dispute founded on the voluntary submission of the parties to the decision of the arbitrators who are either the chiefs or elders of their communities, and the agreement to be bound by such decision or freedom to resile where unfavourable. In the first place a customary arbitration is not an exercise of the judicial power of the Constitution not being a function undertaken by the courts. Secondly, customary law is by virtue of s.274(3)(4)(b) [now Section 315(3) and 4(b) of the 1999 Constitution (as amended)] an existing law being a body of rules of law in force immediately before the coming into force of the Constitution 1979. Thus customary law which includes customary arbitration was saved by section 274(3) and 4(b) of the Constitution 1979. – See Giwa v Inspector General of Police – (1985) 6 NCLR 369, Enyinnaya v Commissioner of Police (1985) 6 NCLR 464. It is well accepted that one of the many African modes of settling disputes is to refer the dispute to the family head or an elder or elders of the community for a compromise solution based upon the subsequent acceptance by both parties of the suggested award, which becomes binding only after such signification of its acceptance, and from which either party is free to resile at any stage of the proceedings up to that point. This is a common method of settling dispute in all indigenous Nigerian societies. It is this kind of arbitration which the court considered in Assampaoug v Kweku & ors – (1931) 1 WACA 192. In Philip Njoku v Felix Ekeocha (1972) 2 ECSLR 199 Ikpeazu J held that were a body of men, be they chiefs or otherwise, act as arbitrators over a dispute between two parties their decision shall have binding effect, if it is shown firstly that both parties submitted to the arbitration. Secondly that the parties accepted the terms of the arbitration, and third, that they agreed to be bound by the decision. Such decision has the same authority as the judgment of a judicial body and will be binding on the parties and thus create an estoppel.
In Ohiaeri v Akabeze, the apex Court enumerated the four essential ingredients of a valid customary arbitration as listed in the dissenting judgment of Nnaemeka-Agu, JSC in Agu v Ikewibe. The Court proceeded to expand the list by adding a fifth ingredient. These conditions precedent to reliance on arbitration which raises an estoppel are as follows:
- That there had been voluntary submission of the matter in dispute to an arbitration of one or more persons.
- That it was agreed by the parties either expressly or by implication that the decision of the arbitrators would be accepted as final and binding.
- That the said arbitration was in accordance with the custom of the parties or of their trade or business.
- That the arbitrators reached a decision and published their award.
- That the decision or award was accepted at the time it was made. Where parties voluntarily present their dispute to customary arbitrators, a non-judicial body, for a decision, neither of them can be heard in court to resile from the decision reached.
This principle was expounded in the case of Oparaji v Ohanu (supra) wherein the court per Iguh, JSC further stated that:
It ought to be pointed out that a customary law arbitration decision has the same authority as the judgment or a judicial tribunal and will be binding on the parties and thus create an estoppel. Whether, however, such a decision will operate as estoppel per rem judicatam or issue estoppel can only be decided where the terms of the decision are clearly known and ascertained and, where they so operate both parties are entitled to invoke the plea. See Idika and other v. Erisi and others (1988) 1 N.S.C.C. 977 at 986; (1988) 2 N.W.L.R. (Part78) 563, Mogo Chinwendu v. Mbamali and Another (1980) 3/4 S.C. 31 at 48, Joseph Larbi and Another v. Opanin Kwasi and Another (1950) 13 W.A.C.A. 81, Opanin Kwasi and Another v. Joseph Larbi and Another (Supra) Ahiwe Okere and Others v. Marcus Nwoke and Others (1991) 8 N. W.L.R. (Pt. 209) 317. I should also observe that where an arbitration under customary law is pronounced valid and binding, it would be repugnant to good sense and equity to allow the losing party to reject or resile from the decision of the arbitrators to which he had previously agreed. See Joseph Larbi and Another v. Opanin Kwast and Another (supra) and Agu v. Ikewibe (1991):1 N.W.L.R. (Pt. 180) 385. (Underlining supplied).
It is noteworthy that the binding nature of customary arbitration has not always been embraced. In Okpuruwu v Okpokam , the majority decision of the Court of Appeal, was that customary arbitration with decision which is binding on disputants does not exist under the Nigerian legal system as held by the learned trial Judge. However, the dissenting decision of Oguntade, JCA (as he then was) is in consonance with the position of the Supreme Court in a plethora of decisions. His Lordship stated that:
I find myself unable to accept the proposition that there is no concept known as customary or native arbitration in our jurisprudence. The regular courts in the early stages of arbitration were reluctant to accord recognition to the decisions or awards of arbitrators. This attitude flowed substantially from a reasoning that arbitration constitutes a rival body to the regular courts. But it was soon realized that an arbitration may in fact prove the best way of settling some types of dispute. The attitude of the regular courts to arbitration therefore gradually changed. It was then realized and acknowledged that if parties to a dispute voluntarily submit their dispute to third parties as arbitrators, and agree to be bound by the decision of such arbitration then the court must clothe such decision with the garb of estoppel per rem judicatam.
The fact that decisions of customary arbitrators are as binding as the judgment of a Court is one of the ways customary law is given its right of place in our jurisprudence. It is also one of the ways recognition is given to the application of our indigenous law in the regulation of the relationships between natives where other laws or principles of common law are neither expressly nor impliedly intended to apply. Once a court is satisfied that the dispute between parties has been the subject of a customary arbitration and the essential ingredients of a valid customary arbitration as listed in Ohiaeri v Akabeze (supra) have been proved, it will give effect to it and uphold a plea of its operation as an estoppel.
Litigants or their counsel must realize that one of the essences of the creation of the Customary Court is the strengthening of the role of traditional institutions. Therefore, the Court will not allow itself to be used to denigrate the importance and relevance of the acts of such institutions unless it is shown, for instance, that a fundamental rule of natural justice was breached in the process of arbitration. It needs to be underscored that the Court functions complementarily to traditional institutions to recognize, promote, enforce and further develop customary laws.
To be continued…
HW Emmanuel J. Samaila, Esq is of the Upper Customary Court, Gwantu, Sanga L.G.A., Kaduna State and can be reached at firstname.lastname@example.org
 Customary Courts Law 2001 Law No.9 of Kaduna State (as amended) (CCL 2001), ss24 & 25; Customary Courts and Upper Customary Courts (Civil Procedure) Rules 2013 (CCR) Order 1 Rule 1(iii); Kaduna State Customary Court of Appeal Law 2001 s48(1). Customary law is given constitutional recognition in CFRN 1999 s315(3) and (4)(b)
 Per Tobi JSC in Onyenge & Ors v Ebere & Ors (2004) 13 NWLR (Pt 889) 20
 CCL 2001, s59; cf Kaduna State Customary Court of Appeal (Appeals from Customary Courts and Upper Customary Courts) Civil Procedure Rules 2013 (as amended) Order VII Rule 7
 High Court of Kaduna State (Civil Procedure) Rules 2007 Order 17 Rule 1(2) requires a defendant to file a counterclaim within 21 days after being served with the plaintiff’s originating process6 NWLR (Pt 247) 266 at 297-298; Awoniyi v Registered Trustees of Armoc (2000) 10 NWLR (Pt 676) 522 at 539; Ayorinde v Kuforiji (2007) 3 NWLR (Pt.1024) 341 at 371; Ademetan v ITRCCG (2016) All FWLR (Pt 821)1502 at 1534, Paras E-F; FMNL v Ogunbayo (2016) All FWLR (Pt 816) 522 at 533, Paras E-F; Ojo v Abogunrin (1989) 5 NWLR (Pt 120) 162.
 . Biko & Anor v Amaechi & Ors (2018) LPELR-45069 (CA) Pp 26-28, Paras F-F.
 Ezeakabekwe v Emenike 1998) 11 NWLR (Pt 575) 529; AG Abia v AG Federation (2006)28 NSCQR 161 at 182, Para 29; Akapo v Habeeb (1992)
 (2018) KCCLR-130 (CCA) Pp 7-8
 Onwugbufor v Okoye (1996) 1 NWLR (Pt 424) 252; Ashiru v Olukoya  11 NWLR (Pt 990) 1; Imani v Shanono (2006) 4 NWLR (Pt 969) 132 at 147 Paras E-F; Lawal v Akande (2009) 2 NWLR (Pt 1126) 425; Ogunjemila v Ajibade (2010) 11 NWLR (Pt 1206) 559; Odeogbola v RTRCCG (2017) LPELR-42548 (CA) P 7, Paras A-E
 (2017) KCCLR-99 (CCA) 6. See also Galadima v Kuku (2018) LPELR-43886 (CA) P 9, Paras B-E); Ieka v Tyo (2007) LPELR-12871 (CA) Pp 26-27, paras C-E; Auta & Ors v Pate (2014) KCCLR-162 (CCA) 7
 In the paper titled ‘The Relevance of the Customary Court of Appeal in the Dispensation of Justice’ accessed 27 September 2021, the writer stated that: “The Customary Court of Appeal has always been guided by the admonition of Idigbe J.S.C. in Chief Karimu Ajagunjeun & 5 Ors. v. Sobo Osho of Yeku Village & 13 Ors. 28 That claims before trial Customary Courts must be elicited not from write or claim as filed but from the entire evidence adduced before the court. Moreover, in tandem with another admonition of Idigbe J.S.C. in the same case, it has always been borne in mind that a Customary Court does not lose its character as such simply because it is presided over by a legal practitioner or because members of the legal profession are today granted audience therein.” (Emphasis supplied)
 Bukar v Bashir (2013) LPELR-21885 (CA) P 16, paras B-F
 A community reading of CCR Order 1 Rule 1(iii) and Order 11 Rules (8) & (11) can be construed as vesting the Customary Court with the requisite powers to allow such application when made by a litigant. CCL s23 allows the Court to promote, encourage and facilitate the amicable settlement of disputes.
 Order 12 CCR
 (2004) 13 NWLR (Pt 889) 20
 (1996) LPELR-SC.98/1988 P 14, Para D or (1996) 10 NWLR (Pt 477) 133
 (2013) KCCLR-7 (CCA) 7; Ayoco v Danbaki (2013) KCCLR-10 (CCA); Gambo v Mamman (2017) KCCLR-139 (CCA); Maigizo v Yawa (2014) KCCLR-47 (CCA)
 See also Ume v Okoronkwo (1996) LPELR-SC 98/1988 or (1996) 10 NWLR (Pt.477)133; Onyenge & Ors v Ebere & Ors (2004) 13 NWLR (Pt 889) 20; Oparaji v Ohanu (1999) LPELR-SC 176/1992 P 19, paras A-C or (1999) 9 NWLR (Pt 618) 290
 (1991) 3 NWLR (Pt 180) 385 at 407; see also Okere v Nwoke (1991) 8 NWLR (Pt 209) 317 at 344
 (1992) 2 NWLR (Pt. 221) 1 at Pp 31-32, paras B-G
 (1991) 3 NWLR (Pt 180) 407
 (1999) LPELR-SC176/1992 P.19, paras A-C, E-F or (1999) 9 NWLR (Pt 618). See also Ojibah v Ojibah (1991) 5 NWLR (Part 191) 296
 (1988) 4 NWLR (Pt 90) P 554
 Eke v Okwarainya (2001) 4 SC (Pt 11) P 71; Egesimba v Onuzirike (2002) 15 NWLR (Pt 791) 446; Audu v Shedrack & Anor (2016) LPELR-40771 (CA) Pp 40-54, Paras A-E.