Civil Questions Involving Customary Law as the Basis of Appellate Jurisdiction in Nigeria

AuthorEnyinna Nwauche
PositionProfessor Rhodes University, P.O
European and International Law
Civil Questions Involving Customary Law
as the Basis of Appellate Jurisdiction in
Enyinna NWAUCHE1
Abstract: Objectives: This paper examines an omnibus ground of appellate jurisdiction of the
Customary Court of Appeal in Nigeria to demonstrate that this ground of jurisdiction which refers to
‘questions of customary law’ and the manner of interpretation by Nigerian courts has stifled t he
growth of customary law. Prior Work This work extends previous works on the nature of legal
pluralism in Nigeria and how Nigerian courts interpret and develop this area of the law. Approach:
Available literature as well as primary documents was used to the objectives of the study.
Implications: This work is of value to academics and judges interested in the growth and
development of customary law in particular and legal pluralism in Nigeria in general. Value: This
paper suggests that a general omnibus jurisdictional clause should be expansively interpreted by
Nigerian courts to recognise all issues con cerning customary law as proper for appellate courts
because this will tremendously assist the growth and development of customary law in Nigeria.
Keywords: Customary Court of Appeal; jurisdiction; legal pluralism
1. Introduction
This article reviews the appellate jurisdiction of customary courts of appeal in
Nigeria- which along with the Sharia Court of Appeal in Northern Nigeria- express
Nigeria’s accommodation of her plural legal heritage and demonstrates that the
judicial interpretation of the appellate jurisdiction of customary courts of appeal
based on the interpretation of the requirement that appeals to customary courts of
appeal and from customary courts of appeal to the Court of Appeal must be of
civil questions involving customary law”.
Every plural legal order is faced with a choice between uniformity or diversity in
the development of that order. Where unification is the objective, it is often
1 Professor Rhodes University, P.O. Box 94, Grahamstown 6 140, South Africa. Phone +27 46 603
7251. Corresponding author:
AUDJ, vol. 11, no. 1/2015, pp. 38-53
organized through a uniform judicial structure which is assumed result in a blended
national law. A further challenge that confronts a plural legal order is how to craft
the appellate process of its different orders. While it is normal that appellate
jurisdiction in many common law countries such as Nigeria is based on a
distinction between appeals on questions of law being as of right and appeals on
facts being at the leave of the court, the nature of the different legal orders demand
different considerations. The challenges of a uniform judicial structure as well as
the distinction between law and fact have been of considerable influence in the
manner in which Nigerian appellate courts have interpreted the requirement of
civil questions involving customary law.
This article addresses two issues emanating from an interpretation of this
requirement. The first issue is that a challenge exists that the interpretation of the
jurisdictional requirement will turn on a distinction between procedural and
substantive issues following the law and fact divide. This distinction ignores
fundamental realities that ascertainment and proof are key ingredients of an
oracular system of law such as Nigerian customary law. Procedural and substantive
issues are intimately connected in the existence and authenticity of a rule of
customary law and as such a distinction would shut out many appellants and
thereby stultify the development of customary law. The second challenge arises
from the fact customary law is subject to a number of validity tests including issues
of general law which must be satisfactory before a rule customary law can be
applied. Accordingly in the interpretation of civil questions of customary law, care
must be taken to avoid a distinction between issues of customary law and issues of
general law. A simple response to the challenges of the appellate jurisdiction of a
plural legal order would be to treat appeals of each legal order as the same
especially where there is a uniform judicial structure. Nigeria choice in
differentiating the appellate process for customary law from the general law has led
to unintended consequences that are unsatisfactory and is symptomatic of a legal
system still unsure of how to deal its legal plurality.
The appellate jurisdiction over customary law issues in Nigeria articulated around
customary courts of appeal within a unified common law system. At the bottom of
a customary court judicial structure is a customary court from where appeals lie to
customary courts of appeal. Appeals from customary courts of appeal go to
common law courts first to the Court of Appeal and ultimately to the Nigerian
Supreme Court. The Customary Court of Appeal is a creation of the 1979
Constitution of the Federal Republic of Nigeria as a concrete way of dealing with

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