PUBLIC POLICY VALIDITY TEST OF CUSTOMARY LAW

Nonso Robert Attoh

Faculty of Law,

University of Nigeria, Enugu State

2015/2016 Session

FORMULATION OF THE TEST AND MEANING

• The public policy test of customary law was introduced by the Evidence Act which provides that “In any judicial proceeding where any custom is relied upon, it shall not be enforced as law if it is contrary to public policy…” (section 18(3) Evidence Act 2011

• Public policy is not defined in the Act and one must needs rely on decided authorities to glean the meaning of public policy. We may however need to point out that Malemi’s view that public policy means public welfare, public good, public interest, national interest, welfare of the people or the interest of society is not exactly accurate. Public policy should be directed towards public welfare etc, but is not the same thing as public welfare etc.

MEANING OF PUBLIC POLICY

• Public policy has been said to be “ a very unruly horse” which once you get astride it, you never know where it will carry you and it may lead you from the sound law – Burrough J. in Richardson v. Mellish (1824) 2 Bing 229 at 252.

• This is because a question of policy may result in differences in judicial opinion with every judge deciding based on his own values.

• Judges often are called upon to determine whether a particular action constitutes a new head of public policy and this may warrant their often having to declare new heads of policy.

• It has been held that public policy is an unsafe and treacherous ground for legal decision and is usually never argued before the court except when other points fail.

MEANING OF PUBLIC POLICY

• According to F.J Jordan in Re: Jacob Morris (deceased) public policy means the ideas which prevail in the community as at the material time as to conditions which are necessary to ensure its welfare. In that regard anything that is injurious to the public interest is considered to be against public policy. However public policy fluctuates and is not fixed and stable. As ideas change with change in circumstances from generation to generation, new heads of policy come into being and old heads undergo modification.

MEANING OF PUBLIC POLICY

• According to Lord Truno in Egerton v. Brownlow (Earl) (1853) 4 HL cas 1, 196 or 10ER 359, 437, public policy is that principle of law that posits that no subject can lawfully do that which has a tendency to be injurious to the public, or which is against the public good.

• It has also been stated in the English case of In the Estate of Hall, Hall v. Knight and Baxter (1914) p.15 by Cozens- Hardy MR that you cannot look for and hope to find public policy in an Act of parliament, but that it is a part of the common law and does not depend on statute.

• McCardie J, in the case of Naylor, Benzon and co Ltd v. Krainische IndustrieGerellschaft (1918) 1 KB 331 at 342, 343 while recognizing instances that the courts have defined new heads of policy held that public policy is a variable thing which fluctuates with the circumstances of the time

MEANING OF PUBLIC POLICY

• Tindal C.J in Horner v. Graves (1831) 7 Bing 735, 743 still emphasized that whatever is injurious to the interest of the public is considered void on the grounds of public policy

• Various terms used as synonymous with public policy include “contravention of public interest, injurious to the country, inconsistent with public duty, repugnant to the interest of the state etc.

• Black’s Law Dictionary (10th ed.) defines it as “The collective rules, principles, or approaches to problems that affect the commonwealth or especially promote the general good” or “more narrowly, the principle that a person should not be allowed to do anything that would tend to injure the public at large”

MEANING OF PUBLIC POLICY

• In essence public policy defines the principles that guide or actuate the operations of the government and its dealings with the people. They are standards that the government adheres to and considers important to the state and the society in general.

• The 1999 Constitution for instance provides that “The security and welfare of the people shall be the primary purpose of government” –section 14(2)(b). Thus security and welfare can be said to be components of the public policy of every Nigerian government

• Thus any custom that is injurious to the welfare of the people or does not enhance the security of the people will be considered against public policy.

MEANING OF PUBLIC POLICY

• It is not sufficient to contend that a custom is against public policy, one must go further to show in what respect the custom or transaction is against public policy

• Caution must be applied when applying public policy test as different people at different times have entertained different views as to what is injurious to the public. Where matters are not clearly against public policy but are questions of doubtful matter of policy, the act should not be prohibited as such doubtful questions of policy must be settled by the legislature. Since a conduct which was acceptable a century ago may have become anathema today and vice versa, the notion of public policy ought to reflect the change

DECIDED CASES• The courts have declared certain customs as contrary to public policy.

Some of these cases include

• Re adadevoh, Alake v Pratt, Cole v Akinyele – (legitimation by acknowledgment of paternity). Note that this is no longer the position of the law in the light of the non-discrimination provision of the Constitution that no person should be discriminated against because of the circumstances of his birth, see the case of Ukeje v. Ukeje (2014) LPELR 22724 (SC)

• Marriage – Meribe v Egwu , Okonkwo V Okagbue (1994) NSWSR 352

• Woman to woman marriage – Meribe v Agwu, Odigie v. Ayika

• Fair Hearing – Agbai v. Okagbue

IN THE MATTER OF THE ESTATE OF HERBERTSAMUEL MACAULAY, W.A.C.A., Selected Judgment October- November, 1951, p.111

• I would not exclude its possibility but should such a claim be received at a further hearing the judge would be at pains to satisfy himself first that such a law and custom is established and secondly that it is not repugnant to natural justice, equity and good conscience norincompatible either directly or by necessary implication with any law in force in Nigeria, including therein the rules of the common law as to the unenforceability of claims contrary to public policy bearing in mind that THE ENCOURAGEMENT OF PROMISCUOUS INTERCOURSE MUST ALWAYS BE CONTRARY TO SUCH POLICY

COLE V AKINYELE (1960) 5FSC 84

• “I would hold it contrary to public policy for him to be able to legitimate an illegitimate child born during the continuance of his marriage under the Ordinance by any other method than that provided for in the Legitimacy Ordinance. When a man who might have married under native law and custom has voluntarily accepted the obligations imposed by a marriage under the Marriage Ordinance it seems no undue hardship upon him to hold that in order to legitimate the children of an adulterous union he must follow the same procedure as a person to whom a marriage under the Ordinance is the only form of lawful marriage open; indeed to hold otherwise would almost be to reduce the distinction between the effects of the two forms of marriage to a matter of words” – Brett F.J

OJUKWU V AGUPUSI (2014)

• I hold that the custom of Nnewi people which allows wives of deceased husbands to have post humous children for their late husbands is not only repugnant to natural justice, equity and good conscience but contrary to public morality and policy in that it encourages prostitution and promiscuity apart from stigmatizing the children who shall be perpetually unsure of their biological fathers by the circumstances of their birth as in this case. Per IGNATIUS IGWE AGUBE, J.C.A

OKONKWO V OKAGBUE (1994) 9 NWLR (PT. 308) 301• "In my respectful view, 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…To claim further that the children the 3rd Defendant had by other man or men are the children of Okonkwo deceased is NOTHING BUT AN ENCOURAGEMENT TO PROMISCUITY. It cannot be contested that Okonkwo (deceased) could not be the natural father of these children. Yet 1st and 2nd Defendants would want to integrate them into the family. A CUSTOM THAT PERMITS OF SUCH A SITUATION GIVES LICENCE TO IMMORALITY AND CANNOT BE SAID TO BE IN CONSONANCE WITH PUBLIC POLICY and good conscience. I HAVE NO HESITATION IN FINDING THAT ANYTHING THAT OFFENDS AGAINST MORALITY IS CONTRARY TO PUBLIC POLICY and repugnant to good conscience. It is in the interest of the children to let them know who their true fathers are (were) and not to allow them live for the rest of the lives under the myth that they are children of a man who had died many decades before they were born.“ – per Ogundare JSC

Helen Odigie V. Iyere Aika (Unreported) High Court of Bendel State, Ubiaja Judicial Division, Suit No. U/24A/79 .• “I agree entirely with counsel to the appellant. It is an odious

custom to permit a woman to marry a woman. It is equally atrocious and against public policy to deprive unwilling natural biological parents, for any reasons, of their child and vest the same on childless parents or childless man or woman as if the child were a chattel. This ugly custom is distinguishable from the system of child adoption which primarily is for the welfare of the child”. – per Ohiwerri. J

AMACHREE V KALLIO (1913) 2 NLR 108

This principle of a common fishery in the open navigable and tidal rivers of the Protectorate referred to by my learned brother in his judgment, is based on theory of ownership of the river-beds by the Crown: it is a principle which must be maintained on the ground of public policy and of public interest, even if native law and custom are inconsistent with it. - Weber J.

AGBAI V OKOGBUE (1991) 7 NWLR pt 204, p.391 SC• “There is a disputed claim between the respondent and the

appellants. The appellants cannot be the plaintiffs, judges and enforcers all at the same time. From the testimony of the respondent and his witnesses, it is obvious that all members of the religious sect who refused to join any age group association could be subjected to the same treatment. A situation where a member of the community is not given a chance for a fair trial in his dispute is certainly against public policy, equity and good conscience”. - Per Nwokedi JSC

CONCLUSION

The Court is to be guided by the words of Ogundare JSc in Okonkwo v Okagbue (supra) that "That a local custom is contrary to public policy and repugnant to natural justice, equity and good conscience necessarily involves a value judgment by the court. But this must objectively relate to contemporary mores, aspirations, expectations and sensitivities of the people of this country and to consensus values in the civilized international community which we share. We must not forget that we are a part of that community and cannot isolate ourselves from its values. Full cognizance ought to be taken of the current social conditions, experiences and perceptions of the people. After all, custom is not static ."

CONCLUSION

• Taking into consideration, Justice Ogundare’s dictum, you will understand why many of the customs which infringe on the human rights of individuals like right to fair hearing, right to freedom from discrimination etc. have been struck down by the court either on the grounds of repugnance, being contrary to public policy or being incompatible with the constitution.

• A determination of whether a custom is contrary to public policy should take cognizance of universal human rights protected in international law and relations.