INCOMPATIBILITY TEST OF VALIDITY OF CUSTOMARY LAW

Nonso Robert Attoh

Faculty of Law,

University of Nigeria, Enugu State

2015/2016 Session

FORMULATION OF THE TEST AND ITS MEANING• The High Court Laws usually couch this test as follows –

• "The Court shall observe and enforce the observance of every local customand shall not deprive any person of the benefit thereof except when any such custom is repugnant to natural justice, equity and good conscience or INCOMPATIBLE EITHER DIRECTLY OR BY ITS IMPLICATION, WITH ANY LAW 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. This may include customs based on slavery or discrimination other acts which are inconsistent with the human rights provisions of our constitution.

FORMULATION OF THE TEST AND ITS MEANING• Incompatibility arises where there is a local enactment which is

manifestly intended to govern a particular subject matter to the exclusion of customary law

• There will be direct incompatibility if the enactment expressly abolishes or modifies the customary law rule by its terms

• There is implicit incompatibility where it is inconsistent with the manifest object of the enactment for both the statute and the customary law to co-exist even though the statute does not expressly abolish or modify the customary law rule

LEGAL ISSUES ARISING

• The primary issue the courts have grappled with is the issue of the proper meaning of “law for the time being in force” and whether it refers to local enactments or also includes English law in force

• In Adesubokan v. Yinusa (1971) All NLR 227, the court held that the law envisaged in section 33 of the High Court Law on the jurisdiction of the High Court in probate cases is the law and practice for the time being in force in England. The Court however in Rotibi v. Savage (1944) 17 NLR 77 held that “any law for the time being in force” refers to local enactments.

• Professor Obilade and Justice Niki Tobi are of the opinion that Rotibi v. Savage is better law, because “customary law is so inconsistent with English law that prescribing an incompatibility test by reference to English law would result in a virtual abolition of customary law”.

CASE LAW APPLICATIONS

• Re Effiong Okon Ata (1930) 10 NLR 65 – custom incompatible with the Slavery Abolition Ordinance No.35 of 1916

• Agbai v. Okogbue (1991) 7 NWLR pt. 204, p.391 (SC)

• Ukeje v. Ukeje (2014) LPELR-22724(SC)

ADESUBOKUN v. YINUSA (1971) N.N.L.R 77

• “This clearly violates the provisions of the Wills Act, 1837 under which a testator can dispose of his properties - real and personal-as he pleases. The provisions of the Maliki Moslem law are undoubtedlyincompatible with section 3 of the Wills Act, 1837. As we stated earlier, a proper construction of subsection 34(1) of the High Court Law can only apply such Moslem law which is rot incompatible with the Wills Act. It is therefore clear that the Moslem law whichthe learned Judge applied in this case is incompatible with the Wills Act”. – Per Ademola CJN

S. O. ROTIBI v. C. AYOTOPE SAVAGE (1944) 17 N.L.R. 77• “Section 16 very clearly provides that native law or custom existing in the

Protectorate, where” not repugnant to natural” justice, equity and good conscience, nor incompatible directly a” by necessary implication with any law for the time being in” force, is to be deemed applicable in suits between natives”;…Here I notice a difference in phraseology as compared with that used in the corresponding section in the Supreme Court Ordinance… Now, for some inscrutable reason, we have in sec. 16 “any law for the time being in force”. I presume the intention is that this is to be interpreted as” any local enactment” and not to include everything stated in section 12. clearly, if the term “any law” were so comprehensive, then, the Limitation Act of 1623 would apply in Nigeria to all cases as it applies in England, since native law, recognising no limitations is incompatible with it. I can conceive of no reason why the law on this subject should be different in the Protectorate from that provided by the Supreme Court Ordinance for the Colony and I THEREFORE ACCEPT THAT THE TERM” ANY LAW” HAS REFERENCE ONLY TO LOCAL ENACTMENTS”. – Per Waddington J.

UKEJE V UKEJE (2014) LPELR-22724(SC)

• “No matter the circumstances of the birth of a female child, such a child is entitled to an inheritance from her late father's estate. Consequently the Igbo customary law which disentitles a female child from partaking, in the sharing of her deceased lather's estate is in breach of section 42 (1) and (2) of the Constitution, a fundamental rights provision guaranteed to every Nigerian. The said discriminatory customary law is void as it conflicts with section 42(1) and (2) of the Constitution." Per RHODES-VIVOUR, J.S.C.

UKEJE V UKEJE (2014) LPELR-22724(SC)

• "The trial court, I hold did rightly declare as unconstitutional, the law that dis-inherits children from their deceased father's estate. It follows therefore that the Igbo native law and custom which deprives children born out of wedlock from sharing the benefit of their father's estate is conflicting with section 42(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)”. – Per Ogunbiyi JSC

AGBAI V OKOGBUE (1991) 7 NWLR pt. 204, p.391 (SC)• “I agree entirely with him that the provisions of section 73 of the Labour Act relied

upon is in no way related to the exercise of the right to promote communal projects,which the custom in this case is designed to support and protect. Whereas theLabour Act is concerned with Master and Servant, Employer and employeesituations; the custom sought to be enforced has no such considerations. It isconcerned with members of the society in their individual capacities discharging theirobligations to their society. It is inconceivable that there could be any incompatibilitybetween the two. Ilere is no question of a Master, Servant, employee or employerrelationship in the enforcement of the custom. The court below was therefore clearlyin error in holding that there was any incompatibility between the custom established and the provisions of section 73 of the Labour Act 1974” – Per Karibi Whyte JSC

AGBAI V OKOGBUE (supra)

• ”Hence the concept of Age-grade per se, does not offend the provisions of the Constitution. On the other hand the idea of the automatic membership of every member of the age grade to join an association formed by the age-grade is an infringement of the freedom from association which is a fundamental right of the individual to determine with who he will associate. To this extent the custom which translates plaintiff a member of the Age-grade automatically into membership of the Umunkalu Age-grade Association, without his consent, and merely because he is a member of their age-grade, is incompatible directly with the provisions of s.26(1) of the Constitution 1963. In my opinion, although the custom of age-grade cannot be described as repugnant to natural justice, equity and good conscience, and is not contrary to public policy. It is also not incompatible with any legislation in force, THAT PART OF THE CUSTOMARY LAW WHICH MAKES EVERY MEMBER OF THE AGE-GRADE PROPRIO VIGORE A MEMBER OF THE ASSOCIATION IS CONTRARY TO THE CONSTITUTION”. - Per KaribiWhyte JSC

AGBAI V OKOGBUE (supra)

• “The question is whether the method of enforcing their rights against defaulting members is also Constitutional? In this regard, it is necessary to draw the critical and fundamental distinction, between enforcing the custom against a voluntary member of the association, and enforcement of the custom against a member who is so by operation of an alleged custom. In the first case a voluntary member of an association enjoys its benefits cum onere. He cannot complain. In the second case nobody can be compelled to associate with other persons against his will. Our Constitution guarantees every citizen that freedom of choice. Accordingly any purported drafting of any person into an association against his will even if by operation of customary law is in conflict with the provisions of section 26(l) of the Constitution, 1963 and is void” - Per Karibi Whyte JSC

AGBAI V OKOGBUE (supra)

• The case of the plaintiff in this case is completely different. This is because plaintiff has not been shown to be a member of their Umunkalu Age-grade association, and can therefore not be subject to disadvantages of membership by consent. Appellants have argued that the plaintiff became a member by operation of law, that is on being grouped as a member of their age-grade. This is clearly conflict with the provisions of section 26(l) of the Constitution which guaranteed him freedom as to who he should associate with -Per KARIBI-WHYTE JSC