Introduction
Customary law, though an important source of law in Nigeria, is not automatically applicable even after it has been proved to exist. For a customary rule to apply, it must satisfy statutory and judicial conditions designed to prevent injustice and ensure conformity with national laws. These conditions are grounded in the Evidence Act, various Customary Court Laws, and Section 36(12) of the 1999 Constitution.
Applicability of Customary Law
Even after a customary law has been proved to be part of the custom of a community, it is not always applicable. Section 36(12) of the Constitution excludes the application of customary law in criminal matters unless it is contained in a written law. Additionally, the laws regulating the use of customary law require that any applicable customary rule must not be:
1. Repugnant to natural justice, equity and good conscience.
2. Incompatible with any law in force (either directly or by implication).
3. Contrary to public policy.
These three tests must all be satisfied before a customary law can be applied by the courts.
1. Repugnancy
Repugnancy is assessed through natural justice, equity, and good conscience.
Natural justice involves fair hearing (audi alteram partem). In Guri v. Hadeija Native Authority, a Maliki rule that denied an accused person the right to defend himself was rejected as repugnant.
Equity is tied to fairness. In Edet v. Essien, a custom that transferred custody of a child based on unpaid bride price was struck down.
Good conscience, though subjective, helps prevent injustice. Courts have applied this flexibly:
- In Mojekwu v. Mojekwu, a custom barring female children from inheriting property was held repugnant.
- In Mariyama v. Sadiku Ejo, an Igbira rule assigning children born within 10 months of divorce to the former husband was held inapplicable based on the case facts, though not labelled repugnant.
Thus, repugnancy is applied to prevent customs that offend fairness and societal morality.
2. Incompatibility with Any Law in Force
A customary law is invalid if it contradicts any written law, whether expressly or by implication.
- Earlier laws referred only to incompatibility with local enactments, but from 1943 the rule expanded.
- Courts have differed on whether incompatibility includes English common law and equity:
- Re Adadevoh supported inclusion;
- Rotimi v. Savage did not.
- The Supreme Court in Adesubokan v. Yinusa confirmed that incompatibility extends to English statutes of general application.
Customary law is clearly inapplicable where it conflicts with the Constitution. For example:
- Section 36(12) bars its use in creating or defining criminal offences.
- In Agbai v. Okogbue and Ukeje v. Ukeje, customs inconsistent with fundamental human rights were struck down.
3. Public Policy
Public policy concerns the welfare and moral standards of society. Although subjective, it remains an important ground for rejecting harmful customs.
- In Meribe v. Egwu, a woman-to-woman marriage was declared contrary to public policy.
- In Alake v. Pratt, equating children born outside wedlock with those born within wedlock for inheritance was held contrary to public policy.
- In Re Adadevoh, a custom that encouraged sexual promiscuity was invalidated on public policy grounds.
While susceptible to abuse, the public-policy test enables courts to safeguard societal values and prevent customs that threaten social order.
Conclusion
Customary law remains a vital part of Nigeria’s legal system, but its application is controlled to ensure justice and conformity with national standards. A customary rule is only applicable when it passes the repugnancy, incompatibility, and public-policy tests. These safeguards prevent injustice, protect constitutional rights, and ensure that customary law evolves in line with societal progress.
0 Comments