“Why Customary Court?” (Pt. 2)


By Emmanuel J. Samaila, Esq.

“Why not Customary Court?”

The Customary Court is not akin to the colonial Native or Area Courts before whom legal practitioners were barred from appearing.

Admittedly, the jurisdiction of the Customary Court differs from one State to the other. Each State that establishes the Customary or Area Court specifies its jurisdiction as it wishes.

The Customary Court, at least in Kaduna State, is possessive of both civil and criminal jurisdiction.

The limit of its criminal jurisdiction is akin to that of other coordinate criminal courts subject to the exceptions specified in Appendix A of the Kaduna State Administration of Criminal Justice Law, 2017 (“ACJL 2017”).

The Second Schedule in the Kaduna State Customary Courts Law, 2001 (as amended) gives the limit of the civil jurisdiction of the Court. Section 24 of the legislation enumerates the laws to be administered by the Court to include:

  1. Customary law (except it is declared repugnant);
  2. Any law which confers jurisdiction on the Court; and
  3. The provisions of any law enacted by the Kaduna State legislature.

As I stated in my article titled, “Criminal Trial Procedure in the Customary Court” (https://www.linkedin.com/posts/emmanuel-j-samaila_criminal-trial-procedure-in-the-customary-activity-6941995102235938816-wyPg?utm_source=share&utm_medium=member_android):

“[T]here is neither a Customary Penal Code nor a Customary Criminal Procedure Code applicable to criminal trial in the Customary Court as there is a Sharia Penal Code and a Sharia Criminal Procedure Code in the Sharia Court. The rationale for this is not farfetched: the offences triable by the Customary Court are not customary crimes but statutory offences.”

In fact, for obvious reasons, the definition of the term “Court” in Section 3 of the ACJL 2017 restricts the criminal jurisdiction of the Customary Court to only Courts presided over by legal practitioners. Logically, appeals from the decisions of the Customary Court in Kaduna State in criminal cases lie to the High Court.

Conversely, it is important to note that the civil jurisdiction of the Court is not regulated solely by customary laws. The rules of natural justice, for instance, the principle of fair hearing, overshadow civil trial procedure and regulate the application of customary law. Aggrieved persons in a civil action have a right to appeal to the Kaduna State Customary Court of Appeal. Schedule

The nature and extent of the application of the doctrine of judicial precedent in the Customary Court is the subject of a paper I am still working on.

In essence, the Customary Court, at least in Kaduna State, is empowered to apply the provisions of the Penal Code, the ACJL and other laws which vests it with jurisdiction, for instance the Kaduna State Landlord and Tenant Law, 2018 alongside its civil jurisdiction.

“Why Customary Court?”

“Why not Customary Court?”

– HW Emmanuel J. Samaila, Esq. Upper Customary Court, Kaduna State samailaemmanuelj@gmail.com

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