SUBSTANTIAL JUSTICE AT LITTLE COST AND TIME: THE PECULIARITY OF THE FEDERAL CAPITAL TERRITORY CUSTOMARY COURTS. By Hon. Ehusani Abel Simpa

SUBSTANTIAL JUSTICE AT LITTLE COST AND TIME: THE PECULIARITY OF THE FEDERAL CAPITAL TERRITORY CUSTOMARY COURTS

                                                            BY

                                     HON. EHUSANI ABEL SIMPA*

INTRODUCTION

 

Unity in diversity has been the most desirable expression of the preferred reality in Nigeria. With 36 state and the Federal Capital Territory, this great country has a population so colorful with peculiarities inherent in different languages, custom, culture, tradition and belief systems. Disputes are inevitably part of human existence and this is why the need for justice will always be undeniable.

In Abuja, the Federal Capital Territory, there is the conspicuous enthusiasm of urbanization which accounts for the identifiable presence of residents who speak diverse native languages and subscribe to different cultural and traditional realities. So many people, tribes and tongues; Gbagyi, Hausa, Ebira, Yoruba, Fulani, Igbo, Igala, Tiv, Ijaw etc., indeed almost every dialect, all live, work, do business and inter-marry or just share the emotional ‘entanglement’.

By virtue of the Federal Capital Territory Customary Court Act 2007 the customary courts of the FCT were established to handle cases involving all persons within the FCT and with keen regard for their traditional beliefs.

QUALIFICATION OF FCT CUSTOMARY COURT JUDGES/EXPERIENCE

By the provisions of Section 4 of the enabling Act[1] all the Judges of the FCT Customary Courts are legal practitioners and therefore professionals in the application of laws and dispensation. This is in contradistinction with what is obtainable in most states of the Federation where customary courts often have a composition of one professional and two non-professionals.

By the evolution of customary laws being so intrinsic to the Nigerian Legal System, it is settled that customary law is a question of fact which must be proved or ascertained by evidence.[2] This is to say that evidence is required in proof and establishment of different rules of custom and tradition particularly because it is only when a native law and/or custom becomes notorious as a result of frequent proof in courts that judicial notice of it is taken.[3]

There are 43 courts spread across the nooks and crannies of the Federal Capital Territory with three Judges manning each court. Most of the Judges currently serving as Members and Chairmen of the FCT Customary courts have over 10years post-call experience. The courts are Graded A, B and C while the Judges are hierarchically designated Chairman I, II, III and Member I, II, III. This has consistently made for speedy dispensation of Justice with the best of professionalism.

ALTERNATIVE DISPUTE RESOLUTION (ADR)

Before getting into the summary nature of litigation and all that it entails in the FCT Customary Courts, it is important to identify the conspicuous position on amicable settlement out of court through the adoption of any of the available ADR mechanisms even after a case has been filed in a customary court.

It is clearly a statutory provision that “in civil causes or matters, a customary court may promote reconciliation among the parties thereto and encourage and facilitate amicable settlement thereof”.[4] An understanding of conflict brings to mind the fact just as there are so many causes of conflict, it is also undeniable that there are numerous ways to settle disputes if parties are willing to prioritize and understand their relationships especially with the fact that litigation almost always brings the force of law into already cracked in relationships.

The rules of court[5] also provides that a court may, with the consent of the parties to any proceedings, order the proceedings to be referred for Alternative Dispute Resolution to such person or persons in such manner and on such terms as it thinks just and reasonable.[6] The FCT customary courts have been deliberate and effective in getting parties to settle amicably(voluntarily, peacefully and without threat or duress) as parties usually reduce their terms of settlement into writing to be adopted by the court as consent judgment or they orally proclaim their terms settlement and the court adopts same.

HOW TO COMMENCE ACTIONS IN THE FCT CUSTOMARY COURTS

First off, it is important to state clearly that anyone can walk into the premises of a customary court and orally state or submit complain/claims to the registrar of the court, a summons is issued to notify the adversary when a date for mention/hearing is fixed.[7]  The Federal Capital Territory Customary Court is statutorily designed to pay more attention to the substance of every case brought before it rather than the procedure. Being that as it may, legal practitioners have the right of audience in a customary court[8] and so litigants who can afford the services can engage lawyers to represent them in court, while the Legal Aid Council of Nigeria also provides free services to indigent parties.[9] For civil causes; a petition, a writ of summons or an originating summons are the known procedural modes of instituting actions.

The Civil Summons ‘FORM 1’ pursuant to Order 2 Rule 6 of the rules of the court is usually issued as the originating process. Any other document or application can be made either orally or in written form to be made part of the originating processes. It important to understand that, for matrimonial disputes, the procedural requirements of the Marriage Act[10] or the Matrimonial Causes Act[11] and rules made pursuant thereto are not applicable in the FCT Customary Courts. Processes filed by a legal practitioner only need to clearly state details of; parties, applicable native law/custom, claims, reliefs sought, address of counsel and address for service on the respondent. The temptation is always apparent in the need to display professionalism by legal practitioners. This is very noble but the law is clear that practice and procedure of the customary court shall be regulated in accordance with customary law.[12] Quite succinctly, defect of procedure or want of form does not affect proceedings as all matters are decided in accordance with the spirit of substantial justice without undue regard to technicalities.[13]

 

Litigants and lawyers will enable the achievement of substantial justice at little cost and time if emphasis is placed more on evidence (particularly oral testimony) of the relevant customary law principles and how they apply to them or their case because customary law is a question of fact which must be proved or ascertained by evidence.[14]

The FCT Customary Court of Appeal had reasons to hold in the case of Amaechina V. Amaechina[15] that “It is not within the province of the court to take cognizance of facts elicited by counsel. Facts disclosed by counsel are not and cannot replace evidence admissible by a court of law.” Professionals in the practice of law will be meticulously performing their responsibilities as ministers in the temple of justice when they counsel, prepare and represent their clients in such a way that every case is built and presented before the customary court with relevant and credible evidence. It is, by the same stroke, instructive to remember that proceedings in the Customary Courts are not based on pleadings,[16] just as defect in procedure or want of form does not vitiate proceedings in a customary court.

JURISDICTION OF THE FCT CUSTOMARY COURTS

By virtue of the Act[17], all persons within the territorial limits of the Federal Capital Territory are subject to the jurisdiction of the customary courts. The causes and matters over which the customary court of the FCT can handle are set out in the Schedule to the Act.[18] From  matrimonial disputes to custody and guardianship of children, civil causes, debt, damages etc. The fact that an issue, a right or a dispute emanates from native law, tradition and custom makes it fall within the adjudicatory powers of the customary court. The Federal Capital Territory Customary Court of Appeal has had reasons to hold that “the customary court has unlimited jurisdiction to hear and determine matters that raise question of customary law or on any bye- law that confers jurisdiction on the court on dowry, bride price, damages or debts under native law and customs as envisaged in item 3 of part 1 of the schedule to the Federal Capital Territory Customary Court Act 2007.”[19]

CHALLENGING THE JURISDICTION OF THE FCT CUSTOMARY COURT

In the exercise of rights and seeking redress in court, it is consistently recurrent to have the jurisdiction of the court challenged either for proper guidance or to help ensure that the court does not engage in any judicial exercise in futility. The FCT Customary Court does not, for example, have jurisdiction over matrimonial disputes emanating from statutory marriages. A marriage under the Act[20] celebrated in a licensed place of worship with the statutory certificates duly issued falls completely outside the jurisdiction of the customary court. A preliminary objection or a presentation of valid proof is sufficient to get the customary court to decline jurisdiction particularly after the customary court must have ascertained that indeed the marriage celebrated at a particular place of worship qualifies as a statutory marriage, that such a place is a licensed place of worship and that the certificate issued conforms with FORM E in the Marriage Act.[21]

 

It is not the claims of the plaintiff that determines the jurisdiction of the customary courts to entertain a suit. The position of the law applicable to superior courts of records is clearly divergent from what is obtainable in the customary courts. The FCT Customary court is bound to consider not only the claim before it, but also the defense of the defendant in order to determine what the real issue between the parties is and whether or not it has jurisdiction to entertain it or not. It is the consideration of the totality of the case of both the Plaintiff and Defendant that will help the court form a balanced and objective opinion as to whether or not it has jurisdiction to entertain the suit.[22]

Challenging the jurisdiction of the customary court on mere procedural irregularities or other issues that bother on technicalities would amount to deliberately offending the spirit and purpose of the law creating the courts because beyond the time wasted and possible cost incurred, the need to achieve substantial justice at little cost and time would be defeated.

 

CRIMINAL JURISDICTION FOR THE FCT CUSTOMARY COURTS

There is the Federal Capital Territory Customary Court (Amendment) Bill, 2020 which proposes to, among other things, vest the FCT customary courts with criminal jurisdiction. The proposed amendment bill passed second reading at the floor of the Nigerian Senate in March 2020. When this bill is eventually passed into law, the FCT customary courts will have jurisdiction to conduct criminal trials, the Evidence Act would be applicable to criminal trials and a single judge would competently preside over cases.[23]

Arguing in favour of the proposed amendment, it is again a remarkable fact that all the judges of the FCT Customary Courts are legal practitioners as statutorily required.[24] The increased judicial capacity, professional experience and intellectual capability of the judges remains undeniable.

 

A major advantage is that vesting the Customary Courts with criminal jurisdiction would be a broader access to justice, given the number of judges and customary court structures already operational. The Federal Capital Territory is made up of six area councils namely; Abaji, Abuja Municipal, Bwari, Gwagwalada, Kuje & Kwali. There are 43 customary court premises spread across the nooks and crannies of all the Area Councils and there are 3 judges in each court. The FCT customary courts are located in; Abaji, Agyana, Bako, Bwari, Chikuku, Dafa, Dawaki, Dei-Dei, Dobi, Dutse-Alhaji, Galadimawa, Garki, Gbagalape, Gbaupe, Gudun-Karya, Gwagwa, G/Lada ‘A’, G/Lada ‘B’, Jikwoyi, Jiwa, Kabusa, Karmo, Karshi, Kubwa, Kuje, Kurudu, Kwaita, Kwali, Lugbe, Mpape, Nyanya, Orozo, Pegi, Pyakasa, Rubochi, Saburi, Shere, Takushara, Tungan-Maje, Ushafa, Yaba, Yangoji and Zuba. The enormous capacities of the FCT customary court supplies support for the argument that they are readily available for utilization and optimal performance. Thus, many criminal matters would be handled with a peculiar magnitude of professionalism and competence which will result in drastic reduction in the existing burdensome caseloads and overstretched capacities of the magistrates.

Admittedly, the very wide circulation of the courts would facilitate easy access to administration of criminal justice in the Federal Capital Territory with improved application of the Administration of Criminal Justice Act 2015, and, as a result, there will be drastic and sustained reduction in crime rates. Litigants and court users will, as a result of quick dispensation of justice vis-à-vis enhanced judicial capacities for effective case management, re-instill their confidence in the justice system. All of these would inevitably translate to increase in the internally generated revenue (IGR) for the government more particularly that Abuja is fast becoming a metropolitan city with its steady rise in population, commercial activities, and lawsuits respectively. The point of enhanced revenue generation is undeniable because residents and Businesses in the FCT would be more favorably disposed to living up to their responsibilities regarding compliance knowing the wider opportunities they have to seek redress when aggrieved.

EFFECTIVE CHILD RIGHTS PROTECTION

Child protection, particularly the girl-child is at the front burner of global rights discussions today. Every sane society definitively proscribe; pedophilia, child abuse, molestation and domestic violence. Vesting the FCT Customary Courts with criminal jurisdiction would further empower the courts to go beyond the customary law claims and reliefs that may not be targeted at protecting the child. Specified offenses can then be effectively tried, with punishments handed down. Customary courts would be jurisdictionally empowered to effective apply both customary laws and statutory provisions regarding custody of children and enforcement of certain rights and duties that are germane to protecting children and other vulnerable groups.

There are pertinent legislative provisions that need to be more effectively applied. For example, Section 39 of the Child’s Rights Act 2003 provides; “Notwithstanding any jurisdictional limitation on the powers of a Magistrate’s court and any other court in relation to the imposition of fines or terms of imprisonment contained in any law, a Magistrates Court or any other court before which the offenses created in this part of this Act are tried shall have the full jurisdictional powers to impose up to the maximum penalties prescribed for the offenses created in this part of this Act.” In the same legislative conduit, Section 50 of the Act[25] provides for Children in need of care and Protection while Section 47[26] provides for penalties for abduction.

With customary courts being able to try criminal matters; Child Development Officers, The Police etc. can move for enforcement of relevant sections of applicable laws in the FCT Customary Court.

CONCLUSION

There is the precision that comes with justice when it is served effortlessly and in record time. Stories of human existence are replete with the quest for justice. We write our own stories as we all participate in the development of humanity and the dynamics of law. The world is changing transitionally and many of our traditional values, customary laws and native realities are also being developed and improved upon. Urbanization and Globalization will never really deplete the potency of traditional African/Nigerian values because when push comes to shove, and every pretentious façade is removed, the identity of a person/community is found in their custom.  The customary courts are also strategically positioned to bring customary law principles to limelight, apply them and interpret them. When given Criminal Jurisdiction, the notch of professionalism will undoubtedly proliferate because the responsibility of a trial court in; observing the demeanour of witnesses, evaluating evidence and ascribing probative value is vital to substantial justice and the FCT Customary courts are in a position to meticulously achieve this.

 REFERENCES

 STATUTES/RULES OF COURT

 Child’s Rights Act 2003

Federal Capital Territory Customary Court Act 2007

Legal Aid Act 2011

Marriage Act Cap. M6 Laws of the Federation of Nigeria 2004

Matrimonial Causes Act Cap. M7 Laws of the Federation of Nigeria 2004

The Federal Capital Territory (Civil Procedure) Rules 2007

 

JUDICIAL AUTHORITIES

AMAECHINA V. AMAECHINA (UNREPORTED) 22/01/2019 FCT CCA APPEAL NO. FCT/CCA/CVA/18/2018

EKWEME THOMAS & ANOR V. AHMADU ABUBAKAR (UNREPORTED) FCT CCA 23/10/2013 APPEAL NO FCT/CCA/CVA/2010

ERHUNMWUNSE V. EHANIRE [2003] 3 NWLR PT. 837 P. 377, PARAS. C-G

EYIMIFE V. EYIMIFE (UNREPORTED) FCT-CCA 6/7/2017 APPEAL NO. FCT/CCA/CVA/7/2016

MOTOH V. MOTOH [2011] 16 NWLR (PT.1274)P. 522.

OKOLONWAMU V. OKOLONWAMU (2019) 8 NWLR (PT. 1674) P.223.

SCHULZE V. ELEVOH [2017] 1 (FCT-CCALR) 208

 

INTERNET SOURCE

Edwin Akuweh, ‘Criminal Trials: Senate amends FCT Customary Courts law’ Available at https://www.von.gov.ng/criminal-trials-senate-amends-fct-customary-courts-law/

 

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* LL.B(HONS), BL, Hon. Judge, FCT Customary Court, Pyakasa

[1] The Federal Capital Territory Customary Court Act 2007

[2] See the case of OKOLONWAMU V. OKOLONWAMU (2019) 8 NWLR (PT. 1674) P.223, PARAS. B-D

[3] This has been decided in a plethora of cases, one of which is the Case of MOTOH V. MOTOH [2011] 16 NWLR (PT.1274)P. 522, paras. D-H

[4] Section 15(2) of the FCT Customary Court Act 2007

[5] The Federal Capital Territory (Civil Procedure) Rules 2007

[6] Ibid, Order11 Rule 1

[7] Ibid, Order 2 Rule 2 which provides; “Every civil cause shall be commenced by a complaint made in person or by the authorized representative of the person making the complaint”

[8] Section 21 of the Federal Capital Territory Customary Court Act 2007

[9] This includes legal aid, advice and representation in court pursuant to the provisions of Sections 8 & 10 of the Legal Aid Act 2011

[10] Cap M6 Laws of the Federation of Nigeria 2004

[11] Cap M7 Laws of the Federation of Nigeria 2004

[12] Section 20 of the Federal Capital Territory Customary Court Act 2007

[13] Ibid, Section 19(2)

[14] OKOLONWAMU V. OKOLONWAMU (Supra)

[15] (Unreported) FCT CCA 22/01/2019 Appeal No. FCT/CCA/CVA/18/2018 PAGE 17 PARA 2

[16] This was the decision of the Federal Capital Territory Customary Court of Appeal in the case of EYIMIFE

V. EYIMIFE (UNREPORTED) FCT-CCA 6/7/2017 APPEAL NO. FCT/CCA/CVA/7/2016 P. 24

[17] Section 14 of the Federal Capital Territory Customary Court Act 2007

[18] Ibid.

[19] See the case of EKWEME THOMAS & ANOR V. AHMADU ABUBAKAR (UNREPORTED) FCT CCA 23/10/2013 APPEAL NO FCT/CCA/CVA/2010 P. 13 PARA. 2

[20] Marriage Act Cap. M6 Laws of the Federation of Nigeria 2004

[21] This was the decision in the case of AMAECHINA V. AMAECHINA (SUPRA) PAGE 21 PARA. 4

[22] The Federal Capital Territory Customary Court of Appeal so held in the case of SCHULZE V. ELEVOH [2017] 1 (FCT-CCALR) 208 AT 211; See also the notorious case of ERHUNMWUNSE V. EHANIRE [2003] 3 NWLR PT. 837 P. 377, PARAS. C-G

[23] Edwin Akuweh, ‘Criminal Trials: Senate amends FCT Customary Courts law’ being an article published at the online portal of the Voice of Nigeria. Available at https://www.von.gov.ng/criminal-trials-senate-amends-fct-customary-courts-law/ Accessed 14/7/2020 at 2:48PM

[24] Section 4 of the Act. Op. Cit

[25] Child’s Rights Act 2003

[26] Ibid.