EVIDENCE LAW — Customary Law — Repugnancy Test Under Section 14(3) Evidence Act
Principle Statement
Section 14 (3) reads thus: 'where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them. Provided that in case of any custom relied upon in any judicial proceedings it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.' The foregoing provision simply put comprises the test which native law and custom must surmount or subject to before it is accorded acceptance and recognition and enforced by the courts.
Ratio Decidendi (Source)
Per Chukwuma-Eneh, JSC, in Ojiogu v. Ojiogu (2010) NLC-123-235-2004(SC) at p. 7; Paras B–C.
"Section 14 (3) reads thus: 'where a custom cannot be established as one judicially noticed it may be established and adopted as part of the law governing particular circumstances by calling evidence to show that persons or the class of persons concerned in the particular area regard the alleged custom as binding upon them. Provided that in case of any custom relied upon in any judicial proceedings it shall not be enforced as law if it is contrary to public policy and is not in accordance with natural justice, equity and good conscience.' The foregoing provision simply put comprises the test which native law and custom must surmount or subject to before it is accorded acceptance and recognition and enforced by the courts."
Explanation / Scope
This principle establishes the repugnancy test for customary law under Section 14(3) of the Evidence Act. Custom must not be contrary to public policy, natural justice, equity, or good conscience. Custom may be established by evidence where not judicially noticed. The principle applies where customary law is relied upon. It ensures that only acceptable customs are enforced. The principle reflects the limit on customary law. It prevents enforcement of repugnant customs. The court must apply the test. The principle provides guidance on the repugnancy test.
