Tests which African Customary Laws must pass before they could be recognized by the Courts with the aid of statute and case laws

As quickly compiled by a 200 Level student;

Answer is as follows:

STATUE LAW

Statutory law or statute law is written law passed by a body of legislature. This is opposed to oral or customary law; or regulatory law promulgated by the executive or common law of the judiciary. Statutes may originate with national, state legislatures or local municipalities.

CASE LAW

Case law is precedent that has been set based on prior judicial decisions, rather than specific statutes or regulations. In contrast, statutory laws are written laws that are passed by legislature in federal and state governments and adopted by the society.

The express inference is that for customary law to be recognized by the court, it must neither be “repugnant to natural justice, equity, and good conscience nor incompatible with any law for the time being in force.” Through these tests, the court has established control over customary processes.

The repugnancy test is the first test of validity. This test requires that any custom or customary law must not be repugnant to natural justice, equity and good conscience. Natural justice is obviously a test of fairness and fair hearing of a custom.

The validity of a customary law is determined by the fact that it is incompatible either directly or by implication with any law for the time being in force. Again others viewed customary law incompatibility test to mean that it must not be incompatibility with any written law.

INCOMPATIBILITY TEST

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.

The Incompatibility comes into play where there is a local enactment which is manifestly intended 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 incompatible, 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.

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.

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.

THE THREE VALIDITY TEST

There are three main types of validity: content, predictive, and construct validity. Content validity is necessary to evaluate whether a test is representative of the various aspects of a specific subject.

The British administration permitted the application of the rules of customary law provided they pass a general test of validity: not repugnant to natural justice, equity and good conscience or incompatible either directly or by implication with any law for the time being in force.