JUDICIAL NOTICE OF CUSTOMS BY CUSTOMARY COURTS: AN AFFRONT TO RIGHT TO FAIR HEARING

Abstract

Decisions of courts are primarily based on concrete, convincing and credible evidence placed before them in the course of trial by the disputing parties. A non-negligible right in such trials is the fair opportunity given to a party to a case to assert and prove facts which he relies upon either in support of his claim or in establishing his defence to a claim. However, this cardinal principle that all facts must be proved before they can be acted upon by the court admits exceptions which include facts are admitted or judicially noticed. This article considered the application of the principle of judicial notice to questions of custom in the customary courts using the Customary Court Laws and Rules applicable to Abia, Ebonyi and Imo States as case studies. It observed that by their Rules, the customary court has great deal of latitude to either call or refuse evidence on an issue of custom raised before it thereby inhibiting the constitutional right of parties to fair hearing. Customs being dynamic in nature, it is recommended that proof by evidence should not in any circumstance be dispensed with in recognition of the parties’ constitutional right of hearing except on admission of such customs.