² Together with the counter-revolution of 29 July, 1966.

³ The States (Creation and Transitional Provisions) Decree, 1967, No. 14 of 1967, divided the country into twelve states, namely, North-Western, North-Central, Kano, North-Eastern, Benue-Plateau, Kwara, Lagos, Western, Midwestern, Central-Eastern, South-Eastern and Rivers States with effect from 27 May, 1967. There is no longer a federal territory. Lagos State consists of the former federal territory and Badagry, Epe and Ikeja Divisions.

⁴ On the indirect rule system see Elias, Nigeria: The Development of its Laws and Constitution, pp. 73 et. Seq; Perham, Lugard: The Years of Authority 1898–1945, pp. 138 et seq.

⁵ The only customary courts in Lagos State are those in Badagry, Epe and Ikeja Divisions, all of which formed part of WesternNigeria. By virtue of s. 1 (5) of the States (Creation and Transitional Provisions) Decree, 1967, and s. 2 of the Lagos State (Applicable Laws) Edict, 1968, the Customary Courts Law of Western Nigeria remains in force in those Divisions.

^{page 29 note 1} No. 2 of 1967.

^{page 29 note 2} No. 1 of 1968.

^{page 29 note 3} No. 4 of 1968.

^{page 29 note 4} No. 38 of 1966.

^{page 29 note 5} No. 29 of 1966.

^{page 29 note 6} Throughout this article, “customary courts” in relation to the Northern States means courts established under the Native Courts Law or Area Courts Edicts. Generally, references to a native court in any Northern State Law are now to be construed as references to an area court under the Area Courts Edict of the State. See s. 2(2) of each of the Area Courts Edicts and p. 31, n. 1, infra.

^{page 29 note 7} About 95% of the cases in the Northern States were heard by the Native Courts: see Judicial Reforms in Northern Nigeria (1967), published by the Ministry of Information, Northern States.

^{page 29 note 8} Grade A courts had, generally, unlimited jurisdiction in civil and criminal cases.

^{page 29 note 9} Notwithstanding the tense used in this paragraph (see sub-heading), the position remains the same in the Western and Lagos States: see p. 28, n. 5, supra.

^{page 30 note 1} The first six states mentioned in p. 28, n. 3, supra.

^{page 30 note 2} See p. 29, supra.

^{page 30 note 3} See, e.g., Area Courts Edict, 1968, Benue-Plateau State No. 4 of 1968.

^{page 30 note 4} Ibid., s. 4(4).

^{page 30 note 5} No. 38 of 1966. The Edict made before the creation of states is in force in the Midwestern) state by virtue of s. 1(5) of the States (Creation and Transitional Provisions Decree, 1967, tNo. 14 of 1967.

^{page 30 note 6} Section 3(1)(b).

^{page 30 note 7} No. 29 of 1966. The Edict which formerly applied to Eastern Nigeria now applies to the three Eastern states, namely, Central-Eastern, South-Eastern and Rivers States. See n. 5, supra.

^{page 31 note 1} See Area Court Edict, 1968, Benue-Plateau State, Ns. 4.of 1968, s. 3(1). Compare Native Courts Law, 1956, s. 3(1). Courts established under the Edict are called Area Courts. Those established under the Native Courts Law were called Native Courts.

^{page 31 note 2} Area Courts Edict, 1968, Benue-Plateau State, s. 3(5).

^{page 31 note 3} Compare Native Courts Law, 1956, s. 3(1): “Subject to confirmation by the Minister, the Provincial Commissioner may establish…”

^{page 31 note 4} “Area judge” is not defined. Presumably, an area judge is any person appointed area judge. He would probably be an alkali or other person learned in Moslem Law or the customary law of the area of jurisdiction of the Court.

^{page 31 note 5} It follows that there are no longer Chiefs’ Courts, cf. Native Courts Law, 1956, ss. 4 and 5(1)(a). An Area Court may sit with or without assessors: Area Courts Edict, 1968, Benue-Plateau State s. 5(1).

^{page 31 note 6} Also, all staff of Area Courts are public officers in the public service.

^{page 31 note 7} Area Courts Edict, 1968, Benue-Plateau State s. 6(1).

^{page 31 note 8} No. 27 of 1967.

^{page 31 note 9} Customary Courts Edict, 1966 (Midwestern Nigeria) No. 38 of 1966, s. 3(1)(a).

^{page 31 note 10} Ibid., s. 4.

^{page 32 note 1} Compare ss. 5, 6 and 7 of the Customary Courts Law, cap. 31, Laws of Western Nigeria, 1959, as amended by W. N. No. 28 of 1963. The power to appoint staff of a customary court including a clerk, an interpreter and messengers is vested in the Public Service Commission.

^{page 32 note 2} Customary Courts Edict, 1966, (Midwestern Nigeria) No. 38 of 1966, s. 7.

^{page 32 note 3} Ibid., s. 6(1), as amended by the Customary Courts (Amendment) Edict, 1966, No. 12 of 1967.

^{page 32 note 4} Ibid., s. 6(2).

^{page 32 note 5} Owing to the civil war in Nigeria, courts in some parts of the Eastern States do not function at present.

^{page 32 note 6} Customary Courts (No. 2) Edict, 1966, Eastern Nigeria No. 29 of 1966, ss. 3 and 7.

^{page 32 note 7} Ibid., s. 5(1). The quorum is three.

^{page 32 note 8} Ibid., s. 8(2).

^{page 33 note 1} Ibid., s. 9(1).

^{page 33 note 2} Ibid., ss. 4 and 3.

^{page 33 note 3} Ibid., s. 6(2).

^{page 33 note 4} The staff of district courts are appointed by the Local Government and Customary Courts Service Board. The Selection Board or other body which may be set up for the appointment of judicial officers is empowered to appoint a Registrar of a Customary Court of Appeal.

^{page 33 note 5} The Military Governor may order that any specified persons or classes of persons including those falling within categories (a) and (b) shall not be subject to the jurisdiction of an Area Court without their consent (s. 15(2)).

^{page 33 note 6} Cap. 52, Laws of Northern Nigeria, 1963, s. 2.

^{page 33 note 7} Cf. s. 15 of the Native Courts Law, 1956.

^{page 34 note 1} See Area Courts Edict 1968 Benue-Plateau State, No. 4 of 1968, s. 14(1).

^{page 34 note 2} Ibid., s. 14(2). Compare s. 15(2) of the Native Courts Law, 1956.

^{page 34 note 3} Consider whether a 22-year-old illiterate person, not ordinarily subject to the jurisdiction of native tribunals, married under the Marriage Act, who had traded in cattle in Sokoto for the past fourteen years and who took all types of food taken by the indigenous people in the North would have been said to be leading the mode of life of the general native community.

^{page 34 note 4} See, e.g., Laniyan v. Isaac, 1958 N.R.N.L.R. 15 where the Court considered the tribe, age and education of the plaintiff in determining whether he was ordinarily subject to the jurisdiction of native tribunals.

^{page 34 note 5} See Area Courts Edict, 1968, Benue-Plateau State No. 4 of 1968, s. 16(1).

^{page 34 note 6} Ibid., s. 16(3).

^{page 35 note 1} See Area Courts Edict, 1968, Benue-Plateau State No. 4 of 1968, s. 17 and First Schedule, Part 2.

^{page 35 note 2} Ibid., s. 18.

^{page 35 note 3} Schedule to cap. 30, Laws of Northern Nigeria, 1963.

^{page 35 note 4} Ibid., s. 12(2) and Appendix A as amended by the Criminal Procedure Law (Amendment) Edict, 1968, Kano State No. 3 of 1968, s. 3.

^{page 35 note 5} E.g., offences under ss. 159, 219, 221–230, 232–237 and 302 of the Penal Code. See the Criminal Procedure (Amendment) Edict, 1968, Kano State No. 3 of 1968, s. 3(d).

^{page 35 note 6} Area Courts Edict, 1968, Benue-Plateau State, s. 18.

^{page 35 note 7} See e.g., the Criminal Procedure Code, s. 12(2), and Appendix A, as amended by the Criminal Procedure (Amendment) Edict, 1968, Kano State.

^{page 35 note 8} Area Courts Edict, 1968, Benue-Plateau State, s. 17(2)(b).

^{page 35 note 9} Customary Courts Edict, 1966, Midwestern Nigeria No. 38 of 1966, s. 17, as amended by the Customary Courts (Amendment) (No. 1) Edict, 1968.

^{page 36 note 1} Customary Courts Edict, 1966, Midwestern Nigeria No. 38 of 1966, s. 18, and the Second Schedule. Cf. the Customary Courts Law of Western Nigeria, s. 18(2).

^{page 36 note 2} Ibid., s. 19(1).

^{page 36 note 3} Ibid., s. 19(3). Compare the Customary Courts Law of Western Nigeria, s. 18(2) and the Second Schedule.

^{page 36 note 4} Ibid., s. 19(2).

^{page 36 note 5} Compare the negative provision in each Area Courts Edict: “The Military Governor may by order direct that any or all of the powers conferred by this Edict shall not be exercised by any Area Court over any persons or classes of persons designated in such order…”(s. 15(2)).

^{page 36 note 6} Customary Courts (No. 2) Edict, 1966, E.N. No. 29 of 1966, s. 11. Compare s. 19 of the Customary Courts Law of Eastern Nigeria.

^{page 36 note 7} Compare s. 19(a) of the Customary Courts Law of Eastern Nigeria, which gave customary courts jurisdiction over persons of African descent only if their mode of life was that of the general community and they were in their country of origin subject to African customary law.

^{page 36 note 8} Customary Courts (No. 2) Edict, 1966, s. 11(1).

^{page 37 note 1} A Customary Court of Appeal has an original jurisdiction concurrent with that of District Courts.

^{page 37 note 2} Customary Courts (No. a) Edict, 1966, s. 12 and First Schedule.

^{page 37 note 3} Ibid., s. 15.

^{page 37 note 4} Ibid., s. 12 and First Schedule.

^{page 37 note 5} Ibid., s. 12(2).

^{page 37 note 6} Ibid., s. 12(2). For an identical provision see s. 19(2) of the Customary Courts Edict, 1966, of the Midwest.

^{page 37 note 7} Area Courts Edict 1968, B.P.S. No. 4 of 1968, s. 53.

^{page 37 note 8} Ibid., s. 54. Compare the pre-existing complex appellate system: Appeals lay from Native Courts Grades B, C and D to the Provincial Courts, from the Provincial Courts and Native Courts Grades A and A Limited to the Sharia Court of Appeal in cases involving Moslem personal law and to the High Court in other cases.

^{page 37 note 9} Ibid., s.43(1).

^{page 37 note 10} Ibid., s. 44(2).

^{page 37 note 11} “Inspector” includes the Commissioner for Area Courts (Ibid., s. 2).

^{page 38 note 1} See Area Courts Edict, 1968, B.P.S. No. 4 of 1968, s. 50. See also s. 59 of the Native Courts Law, which gave an inspector power to order that a particular case within the jurisdiction of a Provincial Court should be tried by that court and not by any other court having jurisdiction to try the case. Only the High Court now has similar powers in respect of Upper Area Courts which have roughly replaced the Provincial Courts (see s. 43(2) of each Area Courts Edict). On the powers of inspectors, see generally Keay and Richardson, The Native and Customary Courts of Nigeria (1966), pp. 283 et seq.

^{page 38 note 2} Customary Courts Edict of 1966, Midwestern Nigeria No. 38 of 1966, s. 50. Compare s. 48(1) of the customary courts Law of Western Nigeria, under which appeals lay from a customary court Grade B not presided over by a legal practitioner and a customary court Grade C to a higher grade customary court in the area if designated a court of appeal or, if not, to a Magistrate's Court. Appeals from a Magistrate's Court in its appellate jurisdiction lie to the High Court. Appeals from a Grade A court and a Grade B court presided over by a legal practitioner lie to the High Court. From the High Court, further appeal lies to the Supreme Court.

^{page 38 note 3} See ss. 29–32 and 45–49 of the Customary Courts Edict, 1966, of the Midwest. The provisions are substantially the same in wording as corresponding provisions of the customary courts Law of Western Nigeria. See particularly ss. 29A and 44A–44E of the Customary Courts Law of Western Nigeria.

^{page 38 note 4} An Edict establishing a Court of Appeal for Eastern Nigeria was made in April, 1967, but its provisions are inconsistent with the Constitution of the Federation as amended by Decree No. 1 of 1966.

^{page 38 note 5} Customary Courts (No. 2) Edict, 1966, E.N. No. 29 of 1966, s. 50. Compare s. 6 of the Customary Courts Law of Eastern Nigeria, under which appeals lay from a District Court to a County Court where there was any in the area, or to the Magistrate's Court where there was no county court. Further appeals lay from the County Court and Magistrate's Court to the High Court and from the High Court to the Supreme Court.

^{page 38 note 6} No person other than the person who immediately before the commencement of the Edict was the Customary Courts Adviser may be appointed Customary Courts Adviser under the Edict unless he is a legal practitioner of at least three years’ experience (Ibid., s. 41(2)). The Customary Courts Adviser may delegate his functions to a Law Officer in the Customary Courts Division of the Ministry of Justice.

^{page 38 note 7} Customary Courts (No. 2) Edict, 1966, s. 43(2).

^{page 39 note 1} Ibid., s. 46. Compare s. 37 of the Customary Courts Law of Eastern Nigeria. The order of transfer itself of course also operates as a stay of proceedings (s. 47).

^{page 39 note 2} See, e.g., Area Courts Edict, 1968, B.P.S. No. 4 of 1968, s. 28(1).

^{page 39 note 3} Customary Courts Edict, 1966, No. 38 of 1966, s. 27(3).

^{page 39 note 4} Section 20.

^{page 39 note 5} “Mixed cause” means a cause in which two or more of the parties are normally subject to different systems of native law and custom.

^{page 40 note 1} Area Courts Edict, 1968, B.P.S. No. 4 of 1968, s. 21(2).

^{page 40 note 2} See s. 20(1) of the Native Courts Law, 1956.

^{page 40 note 3} Keay and Richardson, op. cit., 260.

^{page 40 note 4} See Park, The Sources of Nigerian Law (1963), pp. 122 et seq.

^{page 40 note 5} See Ababio II v. Nsemfoo (1947), 12 W.A.C.A. 127, a Gold Coast case, Fijabi v. Odumola 1955–56 W.R.N.L.R. 133, Ehigie v. Ehigie (1961), 1 All N.L.R. 842, Ehioghae v. Ehioghae 1964 M.N.L.R. 30 and Edokpolor v. Idehen, [1961] W.N.L.R. 11. All the reported cases in which the issue has been raised are civil cases. The question is not important in relation to criminal cases in view of the abolition of customary criminal law (see s. 22(10) of the Constitution of the Federation). The discussion which follows is limited to civil cases although reference is made in passing to criminal proceedings.

^{page 40 note 6} M.N.L.N.37 of 1967.

^{page 40 note 7} Fijabi v. Odumola which is inconsistent with the other decisions was, it is submitted, decided per incuriam. See Park, op. cit., pp. 91–92.

^{page 41 note 1} In the Northern States, an Area Court consists of an Area judge sitting alone or with one or more members. Presumably, no person may be appointed Area judge unless he is learned in the law of the area of jurisdiction, generally, Moslem law. See p. 31, supra. All questions of Moslem personal law must be heard and determined by any member of an Area Court learned in Moslem law sitting alone (Area Courts Edict, 1968, B.P.S. No. 4 of 1968, s. 4(2)).

^{page 41 note 2} M N L.N. 37 of 1967.

^{page 41 note 3} It should be noted that assessors are not members of the court in any of the jurisdictions. So proof of customary law cannot be dispensed with by reason of their presence.

^{page 41 note 4} (1961), 1 All N.L.R.842, at 848.

^{page 41 note 5} A Grade A customary court under the Customary Courts Law of Western Nigeria is presided over by a legal practitioner.

^{page 42 note 1} See, e.g., s. 1(4)(c) of the Evidence Act, and s. 1(4)(c) of the Evidence Law of the Northern States.

^{page 42 note 2} In judicial proceedings in criminal cases, customary courts in the Northern States are required to be guided by the Evidence Law but they are bound by specified sections of that Law, excluding section 14 which deals with judicial notice.

^{page 42 note 3} Supra, at p. 848. Compare Ababio II v. Nsemfoo, supra, at p. 128.

^{page 42 note 4} Section 20(3) of each of the Area Courts Edicts provides: “Nothing contained in this section shall be deemed to preclude the application by an area court of any principle of English law which the parties to any civil case agreed or intended or may be presumed to have agreed or intended should regulate their obligations in connection with the transactions which are in controversy before the Court.” Compare Amadasun v. Ohenso, 1966 N.M.L.R. 179 (Midwest); Olalekan v. Police, [1962] W.N.L.R. 140 at 143 (West).

^{page 42 note 5} The common law doctrine of judicial precedent does not apply to customary courts for the same reason though in principle customary courts should follow decisions of higher courts. Therefore, customary courts cannot apply the doctrine of judicial notice under the guise of applying the doctrine of stare decisis. On the introduction of the doctrine of judicial precedent into Nigerian law, see Allott, Judicial precedent in Africa revisited, [1968] J.A.L. 3, at p. 26.

^{page 43 note 1} On this question, see Elias, British Colonial Law, pp. 271–289; Park, op. cit., Chap. 9; and Ajayi, The interaction of English law and customary law in Western Nigeria, [1960]J.A.L.40, 98.

^{page 44 note 1} See Adedibu v. Adewoyin (1951), 13 W.A.C.A. 191.

^{page 44 note 2} In Lagos State many accused persons awaiting trial stay at the Ikoyi Prisons for several months before their cases are heard. The position is not much different in other states including the Western and Northern states where many criminal cases are heard by the customary courts. See p. 29, n. 7 supra.

^{page 44 note 3} The ultimate objective should be to dispense with proof of customary law before all the customary courts.