Proof of Customary Laws: The Overseas Experience

617. Relevance of Overseas Experience. Many overseas jurisdictions have been presented with the problems, including evidentiary problems, of reconciling the imported common law with indigenous custom recognized as law for various purposes. This is so, for example, in India and many former British African territories. Their experience with proof of local customary laws is therefore instructive.[576]

618. India. There is a very long history of recognition of local customary law in civil matters in India, in particular in matters of family law and succession. As a result, proof of local custom has been a matter of considerable importance, litigated in many cases.[577] Proof of custom has been aided by the provisions of the Indian Evidence Act 1872, drafted by James Fitzjames Stephen and still in force. It was intended to be a simplified and improved statement of the common law of evidence appropriate for local needs. For present purposes its more important provisions are:

  • Section 32(4): statements by persons deceased or who cannot be found as to any public right or custom are admissible. The term ‘public right or custom’ is stated to include local customs adhered to by any substantial number or class of people,[578] but in fact the requirement of a substantial number of persons is not strictly applied.[579]

  • Section 48: in determining the existence of any general custom or right, ‘the opinions, as to the existence of such custom or right, of persons who would be likely to know of its existence if it existed’ are admissible. Thus ‘a tribal or family custom may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognizant of its existence’.[580] The effect of s 48, in cases involving the proof of local custom, is to dispense with the requirement in s 45 that opinion evidence be given only by experts, that is, persons specially skilled in the relevant ‘science or art’. Opinion evidence as to the existence of a custom or rule can be given by members of the customary group who, though they lack formal training, ‘would be likely to know of its existence if it existed’. This does not exclude evidence by outside experts as to local custom. Though not specifically mentioned in section 45, a person skilled in local custom may be an expert for this purpose: ‘the study of customs and manners of tribes and castes, the areas occupied by them and other connected matters come within the meaning of “science or art”’.[581]

  • Section 49: ‘When the court has to form an opinion as to the usages and tenets of any body of men or family … the opinions of persons having special means of knowledge thereon are relevant facts’. Section 49 has been held to apply to proof of customary adoption, to family customs of primogeniture, and so on.[582] Between them, s 48 and 49 provide a flexible and comprehensive basis for admitting evidence of customary law, even though that witness is not formally qualified as an expert.

  • Section 57: the courts may take judicial notice of frequently proved or notorious customs, and many refer to appropriate books or documents of reference.[583] In this way judicial notice is frequently taken of established custom.[584]

To summarise, the courts have been aware of ‘the difficulty of applying all the strict rules that govern the establishment of custom in [England] to circumstances which find no analogy’ there.[585] Local custom ‘must be proved by satisfactory evidence, but without insisting … on the rigorous and technical rules which would be applicable to such a case in England’.[586] The effect of the Indian Evidence Act provisions is that local or family custom ‘may be proved by general evidence as to its existence by members of the tribe or family who would naturally be cognisant of its existence and its exercise without controversy’.[587] On the other hand, the rules of evidence are not dispensed with entirely. To be admissible the evidence of custom must be clear and not speculative. In particular the courts distinguish for this purpose between expressions of concluded opinion and the mere repetition of hearsay.[588]

619. African Commonwealth Countries. Problems of ascertainment and proof of local customary law in Commonwealth countries in Africa have been the subject of much writing and many decisions, and in a number of countries the rules and procedures have undergone a degree of change. What follows is a brief summary only.[589]

  • The Indian Evidence Act has had a considerable influence in a number of these countries. Its provisions were adopted, and with some variation still apply, in many East African countries and in Nigeria.[590] In consequence, a similar degree of flexibility in the laws of evidence with respect to proof of local custom exists as in India.

  • Whether or not a local Evidence Act was adopted, the basic principle applied by the superior courts has been that customary law has to be proved by evidence, unless it has by frequent proof become sufficiently well-known to be judicially noticed. Thus customary law is treated substantially as if it were a question of fact, for the purpose of proof. The Privy Council in Angu v Attah in 1916 stated the rule in authoritative terms:

As is the case with all customary law, it has to be proved in the first instance by calling witnesses acquainted with the native customs until the particular customs have, by frequent proof in the court, become so notorious that the courts will take judicial notice of them.[591]

The rule has been widely applied.[592] Disputes have for the most part concerned the circumstances in which judicial notice of custom could be taken, and the relative weight of evidence compared with previous judicial decisions on custom, rather than the basic rule that unwritten customary law has to be proved by satisfactory evidence.

  • On the other hand, native courts and judges were assumed to know their own customary rules and practices, and formal evidence of them was not taken.[593] For some time local administrative officers sitting as magistrates adopted the same practice, but the rule that evidence of custom was required eventually prevailed.[594]

  • As in India, the practical requirements of proof of custom by those familiar with it prevailed over technical rules of expert evidence and (though to a lesser extent) hearsay. As the Privy Council observed in 1931, in considering the possible modification of older customary rules:

It is the assent of the native community that gives a custom its validity, and, therefore … it must be shown to be recognised by the native community whose conduct it is supposed to regulate.[595]

This assent could best be proved by members of that community themselves, although expert evidence was also admissible.

  • The Nigerian Evidence Act 1945 makes this clear. It provides in part:

14. (1) A custom may be adopted as part of the law governing a particular set of circumstances if it can be noticed judicially or can be proved to exist by evidence. The burden of proving a custom shall lie upon the person alleging its existence.

(3) Where a custom cannot be established as one judicially noticed it may be adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them …

56. (1) When the court has to form an opinion upon a point of foreign law, native law or custom, or of science or art … the opinions upon that point of persons specially skilled in such foreign law, native law or custom, or science of art … are relevant facts.

58. In deciding questions of native law and custom the opinions of native chiefs or other persons having special knowledge of native law and custom and any book or manuscript recognised by natives as a legal authority are relevant.[596]

These provisions facilitate proof of customary law, where judicial notice of it cannot be taken. But no proof of customary law is required in customary and Sharia (Muslim) courts.[597]

  • Apart from formal evidence and judicial notice, a number of other techniques have been widely used to ascertain customary law in Africa. These include assessors and various written sources including attempts at codification.[598] These are discussed later in this Part.[599]

  • In more recent times there has been a reaction against the equation of customary law with fact, supposed to underlie the rule in Angu v Attah.[600] A number of countries (including Ghana, the jurisdiction from which the appeal in Angu v Attah was brought), have reversed the rule by statute, providing that customary law is to be determined as a matter of law.[601] Thus s 11 of the Customary Law (Application and Ascertainment) Act 1969 of Botswana provides that:

If any court entertains any doubt as to the existence or content of a rule of customary law relevant to any proceedings, after having considered such submissions thereon as may be made by or on behalf of the parties, it may consult reported cases, textbooks and other sources, and may receive opinions either orally or in writing to enable it to arrive at a decision in the matter:

Provided that:

(i) the decision as to the persons whose opinions are to be consulted shall be one for the court, after hearing such submissions thereon as may be made by or on behalf of the parties;

(ii) any cases, textbooks, sources and opinions consulted by the courts shall be made available to the parties;

(iii) any such oral opinion shall be given to the court in the same manner as oral evidence.[602]

Apart from ensuring procedural regularity, such a provision increases the scope for judicial ascertainment and control over the content of customary law, possibly at the expense of oral evidence from the local community. However such evidence, remains relevant and admissible.

620. Papua New Guinea: The Present Law. The common law rules of evidence received in Papua New Guinea apparently created uncertainty about the ascertainment of customary law.[603] In 1063 the Native Customs (Recognition) Ordinance was passed. It is now called the Customs Recognition Act. Section 2, entitled ‘proof of custom’, provides:

(1) Subject to this section, questions of the existence and nature of custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as though they were matters of fact.

(2) In considering a question referred to in Subsection (1), a court –

(a) is not bound to observe strict legal procedure or apply technical rules of evidence; and

(b) shall-

(i) admit and consider such relevant evidence as is available (including hearsay evidence and expressions of opinion); and

(ii) otherwise inform itself as it thinks proper.

(3) For the purposes of the decision on a question referred to in Subsection (1) a court may –

(a) refer to books, treatises, reports or other works of reference, or statements by Local Government Councils or committees of Local Government Councils (whether published or not); and

(b) accept any matter or thing in such works as evidence on the question; and

(c) of its own motion, call such evidence or require the opinions of such persons as it thinks fit,

but this subsection does not limit in any way the discretion of the court in obtaining evidence or informing itself on the question.

(4) Notwithstanding Subsection (1), where an appeal is made from a decision of a court, the court that hears the appeal may consider de novo a question referred to in that subsection that arises in the appeal.[604]

Section 2 does not say that questions of custom are matters of fact, only that they are to be ascertained as if they were. Indeed, under s 20 and schedule 2.1 of the Constitution (1975), ‘custom is adopted, and shall be applied and enforced, as part of the underlying law’: once ascertained, custom is applied as law (unless inconsistent with statute or ‘repugnant to the general principles of humanity’).[605] The Parliament is empowered to pass a law to ‘provide for the proof and pleading of custom for any purpose’, but no such law has yet been passed.[606] Under these provisions, custom constitutes part of the underlying law, to be applied as such in appropriate cases. Village courts take ‘judicial notice’ of custom in the sense of applying it without specific evidence: this is consistent with the theory of village courts as local, relatively informal, courts applying custom.[607] On the other hand, the Supreme Court has apparently been reluctant to take judicial notice of custom and is increasingly insisting on regular proof of custom rather than mere assertion.[608] So, while there is no requirement that custom be specifically pleaded,[609] it is still ascertained and applied by way of exception from the general law, despite its position under the Constitution as part of the ‘underlying law’. Custom is ascertained by adducing evidence in each case, but ‘technical rules of evidence’ such as those excluding hearsay or non-expert opinion evidence are excluded (Customs Recognition Act s 2(2)). Assessors are also sometimes used, despite an uncertain statutory basis for them.[610] Little has been done so far to provide documentary proof of custom,[611] or to restate or codify it.[612]

621. The PNG Law Reform Commission’s Proposals. In its Report No 7 (1977), the Papua New Guinea Law Reform Commission made proposals for ascertainment of the underlying law, including custom. These were intended to assist Parliament in fulfilling the Constitutional mandate to develop the underlying law. The Report envisages that the courts will take an active role in developing the underlying law, incorporating elements of custom or common law and reasoning by analogy from these and other sources.[613] Section 11 of the proposed legislation deals with the problems of evidence and information:

(1) If in any matter a question of underlying law is involved and a court is considering whether

(a) to apply a rule of customary law …

the parties in the proceedings shall be permitted to bring evidence or information to help the court decide the matter.

(2) Counsel appearing in any matter are under a duty to assist the court by calling evidence and obtaining information and opinions that would assist the court in determining

(a) the nature of the relevant rule of customary law … and

(b) whether or not to apply [that rule].

(4) When determining a question as to the existence or content of a rule of customary law, the court may take judicial notice of customary law and shall consider the submission made by or on behalf of the parties and may –

(a) refer to statements, declarations and records of customary law made by local, provincial or other authorities; and

(b) consider evidence and information concerning the customary law relevant to the matter before it by a person who the court is satisfied has knowledge of the customary law relevant to the proceedings; and

(c) refer to cases, books, treaties, reports, or other works of reference; and

(d) of its own motion obtain evidence and information and obtain the opinions of persons as it thinks fit.

(5) Notwithstanding any provision in any other law, when a court … is considering a question of customary law, the court may make further enquiries into any of the matters set out in Subsection (4).

Section 11 is clearly intended to assist the court in an active (to some extent inquisitorial) task of developing the underlying law: the proof of existing custom is only one aspect of this. But the effect of s 11(4) is in practice to avoid most or all of the restraints imposed by the law of evidence on proof of customary law. The PNG Commission said of s 11(4) that:

It allows the court to take judicial notice of customary law. This is different from the Native Customs (Recognition) Act 1963, Section 5, under which proof of customary law is a matter of fact. However, it is unrealistic to expect that all the courts will have knowledge of, or ready access to knowledge of, customary law. Therefore, the section provides a variety of ways of ascertaining customary law.[614]

If the PNG Law Reform Commission’s recommendations are accepted and the courts do in fact adopt the active law-developing role envisaged for them, it may well be that local custom will be superseded by a ‘customised’ form of general law, different from any single system of customary law in Papua New Guinea. Indeed, it has been suggested that this is desirable.[615] Whether this development will occur, or whether the existing situation of custom being taken into account in particular ways when its content has been proved or agreed will continue, remains to be seen. The PNG Law Reform Commission’s Report No 7 has not been tabled in Parliament, and no decision on its implementation has been taken. in the meantime, the judges have not been particularly receptive to new and creative uses of customary law, or indeed to developing new ways of ascertaining it.[616]