Validity and test of customary law: The evidence act in section 258 defines custom as a rule which in a particular district has from long usage, obtained the force of law. In Aku v Aneke, custom was defined as the unrecorded tradition and history of the people which has grown with the growth of the people to stability and eventually become an intrinsic part of their culture.
In Oyewunmi v Ogunesan, Andrew Obaseki defined customary law as the organic or living law of the indigenous people of Nigeria regulating their lives and transactions. It is regulatory in that it controls the lives and transactions of the community subject to it. It is organic in that it is not static. This is one of the essential characteristics of customary law.
The Customary courts law eastern region No. 21 of 1956, section 2 defines customary law to mean a rule or body of rules regulating rights and imposing correlative duties which has obtained and is fortified by established native usage and which is appropriate and applicable to any particular cause, matter, dispute, issue or question.
Characteristics of customary law
Characteristics of customary law includes the following:
Flexibility: customary law is not rigid. It is flexible in response to the dynamic character of society and culture. In Lewis v Bankole, Osborne C.J held that one of the most striking features of west African native custom, is its flexibility.
It appears to have been always subject to motives of expediency, and it shows unquestionable adaptability to altered circumstances without entirely losing its character. Also, in Alfa v Arepo, it was held that customary law is not a static law. It change with the times and the rapid development of social and economic conditions.
Customary law is organic and flexible because it grows to keep pace with changes in the society. An example of the flexible character of customary law will suffice.
Unwritten nature: In Ojisua v Aiyebelehin, it was held that customary law is largely unwritten.
Currency: It must be the current binding custom of the people. In Kimdey and ors v Military Governor of plateau state, it was held that one of the characteristics of customary law is that it must be in existence at the material time.
At the time a particular rule and custom is sought to be relied upon, it must be shown that the people of the particular area accept it as their custom and acknowledge its existence or continued existence.
Acceptability: Before a custom translates into law, it must be regarded as obligatory by the people. This is indeed, one of the most essential characteristics of customary law.
Validity of customary law
The court shall observe and enforce the observance of every local custom and shall not deprive any person of the benefit thereof except and when any such custom is repugnant to natural justice , equity and good conscience or incompartible either directly or by its implication, with any laws for the time being in force.
This test generally means that where a subject matter is governed exclusively by a law or statute for the time being in force, any customary law that is inconsistent with such a law or statute cannot be valid.
Section 18(3) of the evidence act 2011 provides that in any judicial proceeding where any custom is relied upon, it shall not be enforced if it is contrary to public policy or is not in accordance with natural justice, equity and good conscience.
The high court laws of lagos state captures the test as the High Court shall observe and enforce the observation of customary law which is not repugnant to natural justice, equity and good conscience.
Test of Customary Law
Below are the test a customary law must pass before it can be said to be valid or invalid:
1. The repugnancy test
A customary law which is repugnant to natural justice equity and good conscience will not be enforced wand applied by the courts.
In okonkwo v okagbue, it was held that the word repugnance ordinary means offensive, distasteful, inconsistent or contrary, while natural justice means according to or pertaining to nature. Good conscience connotes some notions of a moral sense of qualities. The issue of repugnance is a question of law which need not be pleaded but can be raised during address or even suo motu by the judge.
The courts have declared only customs they consider below civilized form of conduct as repugnant to natural justice, equity and good conscience. Often times, the custom declared repugnant are also found to be contrary to good conscience.
In Mojekwu v Ejikeme, the issue was whether the Nnewi custom or ceremony of Nrachi whereby a father plants his unmarried daughterin his house for the purpose of raising issues for him and which further forbids a widow from inheriting or succeeding to the husband’s estate is to repugnant justice, equity and good conscience.
2. Incompatibility test
The Incompatibility come into play where there is a local enactment which is manifestly intented to govern a particular subject matter to the exclusion of customary law. The various High court laws enabling the application of customary law provides that a rule of customary law which is incompartible, either directly or by necessary implication, with any law for the time being in force cannot be observed or enforced by the courts.
In summary, incompatibility test is saying that where a customary law is against the provisions of any law in Nigeria that is currently applicable, it will be held to be invalid. Take for instance, a custom that prohibits women from partaking in the sharing of their fathers inheritance will be invalid because it is against section 14 of the 1999 constitution of Nigeria, which provides that nobody in Nigeria should be discriminated based on sex, place of birth, culture etc.
It is important to note that for this test to be enforced, it must be for the time being in force. In other words, it must be a law that is currently applicable in the country.
3. Public policy test
The last test that determines whether a customary law is valid or not is the public policy test. Public policy test simply requires that the customary law must not be against public policy. In other words, it must not be injurious to the public good.
A clear instance where this test was highlighted was in the case of Okonkwo v Okagbue. In this case the court held that a custom that allows a woman to be ‘married’ to a deceased man cannot be said to be in good conscience or accords with public policy.
The court further held that “a custom that permits such a situation gives licence to immorality and cannot be said to be in consonance with public policy and good conscience. Accordingly, anything that offends against morality is contrary to public policy and repugnant to good conscience.
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