How legal are customary laws in Nigeria?

In Nigeria, customary laws refer to customs or habitual practices accepted by members of a particular community as having the force of law as a result of long established usage and they co-exist with English laws and established Nigerian legislations and other forms of law though some customary laws that were perceived to be barbaric were abrogated during the colonial era.

The laws were abrogated after failing a validity test based on a tripod policy; the law must not be repugnant to natural justice, equity and good conscience, it must not be incompatible, either directly or by implication with any law presently in force and it must not be contrary to public policy.

And these have been legislated upon and provided for in the legislation of Nigeria as entrenched in Section 16 of Evidence Act 2011 as the repugnancy test, incompatibility test and the public policy test

The repugnancy test determines if a custom offends natural justice, equity and good conscience by mandating that for a custom to be valid, it must be fair and reasonable, not contrary to common sense practices or abhorrent in any way.

The incompatibility test looks out for whether the custom in question contradicts any existing Nigerian legislation as any custom that is incompatible with the provisions of an existing law in Nigeria would be deemed null and void by the court of prerequisite jurisdiction to the extent of its inconsistency.

The public policy test examines whether or not a custom promotes ideals that are generally acceptable in a civil society and for a custom to be accepted as valid under the law, it must pass all three tests and any custom that fails any of the tests may be declared null and void by a court.

The validity of customary laws can be challenged but only in a court of law which is the only institution that has the power to declare a custom invalid. Once the decision is given, it serves as precedence for all other situations or cases where such custom arises in the future.

This has been done in the past and there are landmark decisions of the court that have abrogated some customs in various parts of Nigeria.  In the case of Ukeje Vs Ukeje which has been adjudged one of the most popular judicial decisions in Nigeria, the Supreme Court abolished the Igbo custom of male primogeniture which prohibited female children from inheriting their late father’s estate.

In Dawodu V Danmole, the court ruled against the Yoruba native custom of distributing the estate of a deceased family head using a method known as “idi-igi” and instead upheld the method known as “Ori Ojori.”  The Idi Igi method shares property according to the number of wives of the deceased while the Ori Ojori method shares property equally among the children irrespective of the number of wives.

Also in Alake Vs Pratt, the court outlawed the custom that prevented children born out of wedlock from being able to inherit their deceased parent’s estate having found it to be repugnant and also incompatible with the right of the children to freedom from discrimination entrenched in the Nigerian Constitution.

While some customs perceived to be absurd have successfully been challenged in courts, there are still many customary practices that have gone unchallenged and are still being imposed on indigenes of the communities where they are practiced.

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