- Introduction
It is generally known that local people have a range of needs at the grassroots level, particularly the desire to have closer access to justice. As the lowest Court which significantly exists to meet the yearnings of people at the local level, Customary Courts in Southern Nigeria fall within the realm of Native Courts which serve historical and cultural purposes. This aligns with the Law governing the framework of Customary Laws which states that no one shall be deprived of the benefit of Customary Law. Basically, the terms ‘Customary and Customary Law” applies to what accords with the practices, cultures, and conventions either referred to, as Native Law and Custom or Islamic Law and Custom. Native and Custom in this vein represents established traditional norms commonly observed by members of a community that is indigenous to their peculiar area while Islamic Law constitutes a religious law which is applicable to the members of the Muslim faith.
- The Legal Framework
The principal law governing Customary Laws and Rules in Lagos State is the Customary Court Law of 2015 (further amended in 2018) which sets out the legal framework and provides that Customary Courts are created and placed under the supervision of the Lagos State Judicial Service Commission acting on the recommendation of the State Attorney-General and subject to the approval of the State Governor. A Customary Court is properly constituted with a minimum of three members and a maximum of five members, one of whom shall be the President of the Customary Court. A person shall be qualified to hold office as the President of a Customary Court if the person is a Legal Practitioner or a Law Graduate, at least 50 years of age and shown to be of proven integrity and good standing in the society. Other members of the Customary Court are required to be degree holders of any recognized university or polytechnic, at least 50 years of age and of proven integrity and good standing in the society. One of the members of a Customary Court must however be knowledgeable in Native Law, Custom and Tradition. The tenure of the President and members shall be for a renewable term of five years and shall not be pensionable. Note that the Law provides that members of Customary Courts should be addressed as ‘Your Worship’.
- Jurisdiction
All Customary Courts have jurisdiction over all persons in the State and they shall ensure the applicable Law is not repugnant to natural justice, equity and good conscience. They are mandated to administer any Law in respect of which jurisdiction is conferred on the Court including the rules and bye laws made by a Local Government. To this end, a Customary Court shall have criminal jurisdiction for the summary trial of offences created under a bye-law of a Local Government or a Local Council Development Area and impose punishment or fine which shall not exceed N50,000 for an individual offender and N100,000 for a corporate offender. Similarly, a Customary Court shall have jurisdiction to impose the penalty authorized by Law for Contempt of Court committed in the face of the Court. For civil matters, a Customary Court shall have jurisdiction to entertain matrimonial matters arising from marriages conducted under Native Law and Custom as well as make pronouncements on access to children of the marriage, upkeep of the children, including their school fees, healthcare, shelter and all other reasonable needs of the child, because the interest of the child shall be of paramount consideration. In the same vein, a designated Customary Court on Islamic Law can adjudicate on Islamic-related marriage, divorce, child maintenance and inheritance matters. Currently however, issues relating to legal guardianship and custody of children have been placed under the jurisdiction of the State Family Court in line with the power of the Chief Judge to increase jurisdiction as provided under Section 23 of the Law; the existing Child Rights Law and the Family Court of Lagos State (Civil Procedure) Rules which established Family Courts for the purpose of hearing matters relating to children.
- Mediation
In matrimonial matters, Customary Courts can encourage the parties to explore alternative dispute resolution (ADR) involving mediation and counseling for possible reconciliation purposes because parties would always raise various allegations against themselves in the Court. In other words, a Customary Court is allowed by the Law to promote reconciliation among persons, encourage and facilitate the settlement of matters and differences between parties in an amicable matter. Here, the duty falls on the Court to observe and consider what needs to be done but where evidence shows that the marriage has broken down irretrievably, the Court does not have a choice than to dissolve such a marriage.
- The Chief Judge
The Law empowers the Chief Judge to make rules to regulate the practice and procedure of Customary Courts; rules for the recording of the proceedings, rules prescribing the powers of Customary Courts, rules defining the duties of any officer of the Customary Court and rules for the exclusion of the public from Customary Court, as well as the powers to increase the jurisdiction of the Customary Courts in civil matters or revoke same accordingly. The Chief Judge may transfer any matter before a Customary Court to another Customary Court or to a higher Court in the State by means of an Order given under his hand.
- The Judicial Service Commission
Customary Courts are established by the Lagos State Judicial Service Commission, acting under the recommendation of the State AG and subject to the approval of the Governor. Thus, Customary Courts are placed under the general supervision and control of the Commission. The Commission is therefore empowered to appoint, dismiss or exercise disciplinary control over members of the Customary Court. In so doing, the Commission can remove the President of the Court or a member from office for reason of indiscipline or misconduct; where he is found to be mentally impaired or unfit to discharge his functions; and if the member has been convicted of an offence which involves fraud, dishonesty or acts of moral turpitude. In all, the Commission shall be responsible for ensuring good conduct and discipline of Customary Court members. Courts shall sit at such times, subject to any direction given by the Commission.
- Speech of the Chief Judge
At the swearing-in ceremony held on the 8th of June 2023, the Chief Judge, Hon. Justice Kazeem O. Alogba admonished the 12 newly-appointed Presidents of Customary Courts as follows:
“Today’s event is important in your lives because you have sworn by God and man to become judicial officers. You have deliberately chosen to become Presidents of the Customary Courts within the precincts of justice. You know what your job entails and what society expects you to be. Prepare to gather enemies from now once you do not give justice the way they like it. Since you applied to come into the fold, hold on dearly to your conscience. Mind your jurisdiction otherwise it will be a serious misconduct. Do right in accordance with the law in line with your jurisdiction. Although you still remain yourself, guide your circle of association because you will be under watch by the society. You must not dance in the market place. Do not compromise, be studious and don’t be lazy. Be familiar with the tenets of the profession. What takes you out of trouble is your record. Behave well in Court. No improper dressing. Represent Lagos State well. Everybody makes mistakes but don’t deliberately make mistakes. You are most likely to be misunderstood because you are dealing with people at the lower level. Exhibit wisdom in the discharge of your duties and preside well because the judicial officer is the one usually under scrutiny. Share knowledge with your colleagues but don’t discuss your cases as you are bound by the law. Keep your records straight. Most importantly, don’t go outside your jurisdiction. As Presidents of Customary Court, don’t be high-handed just because you are the lawyers among the members of the Court. Don’t be a dictator and don’t look down on the other members of Court.”
- Conclusion and Recommendations
Despite the fact that Customary Courts are informal Courts, there is still need to strengthen the capacity of the members of the Customary Court through continuous training programmes on family matters, role of mediation, members’ code of ethics and offences stipulated under the LG Bye-Laws. Upgrading the level of their understanding and enhancing capacity will enable the Customary Court members to contribute their own quota to the jurisprudence of Customary Court matters in Lagos State. It is therefore not surprising that many people, including Lawyers and Superior Courts look down on Customary Courts because their judicial proceedings are not subject to the application of Evidence Act. This could be why greater latitude is not accorded to the judgments of Customary Courts. See: Odofin v. Oni (2001) LPELR-2226 (SC) where the Supreme Court referred to the proceedings of a trial Customary Court as “a Court presided over by laymen without any assistance whatsoever from Legal Practitioners or a Court without rudimentary exposure to legal principles.”
Oluwatomi A. Ajayi is a newly-appointed Customary Court President in Lagos State. She is also an author of 3 books titled ‘Crime Scene and Forensic Investigation’; ‘Simplified Criminal Law in Nigeria’ and ‘Academic Writing Skills & Core Components’.
