EVIDENCE 1.6 PROOF OF CUSTOM AND JUDICIAL NOTICE
PROOF OF CUSTOM AND JUDICIAL NOTICE.
In Nwaigwe V Okereke, custom was regarded as the tradition and ethos which govern the relationship between members of a community.
A custom is regarded as a question of fact-Section 18(1). Therefore it must be established/proved either by judicial notice or evidence.
A custom may be noticed judicially where it has already been decided by a court-Section 11. A party who alleges the existence of a custom would have to prove it by evidence-Section 17 EA.
In essence, where a custom has not been judicially noticed, it should be proved-Section 73 EA.
Custom can be proved by evidence of witnesses (especially those who hail from the community in question)-Daramola V Governor of Osun State.
Section 18(3) EA, after proving a custom, it may be rejected if it is contrary to public policy, contrary to an existing written law or contrary to natural justice, equity and good conscience.
For a custom to be judicially noticed, it should have become notorious for appearing before the courts. Not just a one-off decision-Cole V Akinyele. What is required is that it must have continued to appear to the extent that it can be said to have acquired notoriety–Romaine V Romaine. This judicial notice means that it has frequently been proved in courts-Motoh V Motoh.
The requirements stated above would not be necessary if such custom has been codified in a valid written law in Nigeria.
Also, proof of customary law is not necessary in a Customary Court as it is presumed that the court is familiar with the prevailing custom within the area of its jurisdiction-Dada V Faleye.