The Repugnancy Doctrine and Customary Laws in Nigeria; Analyzing Nigeria Customary Laws through the Lenses of Africanism

The Repugnancy Doctrine and Customary Laws in Nigeria; Analyzing Nigeria Customary Laws through the Lenses of Africanism

By Kuatsea Shagbaor Joseph

ABSTRACT:

Nigeria is a nation with diverse sources of law operating within our legal system. We have; Local Enactments ( The major and most important), Islamic Law (Sharia), English Law, International Law and of course Customary Law. In the 21st Century there is this general belief that majority of African Customary Law if not all is barbaric and whilst said belief has elements of truism to it, there are elements of falsity as well. In Nigeria, under the Law of Evidence, Customary Law must first be ascertained that is proven by virtue of section 18(1) & (2) of the Evidence Act and then it is further subjected to the validity test, that is it must not be repugnant to natural justice, equity and good conscience and it must not be contrary to public policy. This was encoded in section 18 (3) of the Evidence Act. The Judiciary is responsible for statutory Interpretation a power conferred upon them by the Constitution of the Federal Republic of Nigeria, 1999 as amended. In interpreting what is repugnant to natural justice, oftentimes than not, Nigeria customs are been seen from the lenses of the Europeans or Americans whilst this is not entirely flawed there are series of issues that have arisen due to this and in turn it has led to controversies within the Nigeria legal circle. This paper seeks to analyse the repugnancy doctrine and throw insight into these issues; Africanist view of native custom and European view of native Nigeria custom.

INTRODUCTION

First and foremost, what is the repugnancy doctrine? According to Black Laws Dictionary, The word ‘repugnancy’ means an inconsistency, opposition or contrariety between two or more clauses of the same deed or document or contract.

Drawing from this repugnancy to natural justice, equity and good conscience as it relates to customary law means rules of custom, norms or beliefs should not be inconsistent or in opposition or contrary to what is fair, just or consciousable.

The repugnancy doctrine in Nigeria emerged from the case of Eshugbaye Eleko v Government of Nigeria (1931) in that case Lord Atkin said

” The court cannot itself transform a barbarous custom into a milder one if it stands in it’s barbarous character it must be rejected as repugnant to natural justice, good conscience and equity”.

According to Lord Wright, the clause was intended to invalidate ‘barbaric’ custom.

What is Customary Law? Customary Law refers to laws which are derived from the native customs of indigenous people. The Customary Court of Anambra State defined it as

” A rule or body of rules regulating rights and imposing correlative duties, being a rule or body of rules which obtains and is fortified by established usage and which is appropriate and applicable to any particular cause, matter dispute, issue or question”.

The Supreme Court in Zaidan v. Mohosen defines customary law as laws which are not enacted by any competent legislature but are binding and enforceable on Nigerians subject to it.

In Olobodun v. Lawal, the Supreme Court defined customary law to mean a set of rules of conduct applying to persons and things in a particular locality.

Body

After establishing what customary law is as well as the repugnancy doctrine backing it up with judicial authority, let’s get into the main discourse.

Nigeria as a country has seen centuries of evolution, prior to the British expansion and incursion into the area now known as Nigeria, many locals lived in communities governed by laws. Take for instance, the Yoruba speaking people of Western Nigeria who not only had well placed laws but a proper structured government. The King was the Alaafin, Head of the Executive, the Bashorun was the Head of the Oyomesi ( The 7 King makers) who performed legislative like functions especially in exercising  oversight functions over the Alaafin and the Ogboni Society performing Judicial like functions. It is safe to say there were laws in every part of Nigeria and the narrative of the Europeans to the contrary is simply whitewashing.

The repugnancy doctrine is a European introduced legal innovation into Nigeria majorly aimed at condemning Africa legal institutions and its custom. I concede that some African customs are downright barbaric such as the custom of killing of twins that existed in Calabar, some Africa customs are downright backward such as treating women as inferior to men.

In the case of Ukeje v Ukeje, The Court held; on no account should a woman irrespective of any customary law in existence be deprived of inheriting property on the basis of her sex as this is not only repugnant to natural justice but in violation of Section 42 of the Constitution of the Federal Republic of Nigeria 1999 as amended that guarantees freedom from discrimination on the grounds of sex, or circumstance of birth.

The Supreme Court in Anekwe v. Nweke, reiterated similar sentiments when it condemned an ibo custom that prohibits widows who do not have male children from inheriting property. See also Motoh v. Motoh, (2011), Asika v. Atuanya (2008).

At the end of the day, Judges have the discretion to give judgements based on how the intrepret certain wordings of statutes. Justice Oliver Wendell Holmes, Justice Jerome Frank among others being the proponents of the realist school posited that Judicial decisions by Judges are usually influenced by certain extra judicial factors and remember the term natural justice is very subjective as what may be fair to one may not be fair to another so in the end Judges apply the repugnancy doctrine to customs based on their perspective of fairness and sprinkled with a little extra judicial factors such as place of birth, mode of orientation, philosophy and religion and at times they tend to be eurocentric condemning all local customs. In condemning African custom one must first look at the reasoning behind it and let us not forsake our Africanism in the process or in a bid to be Europeans in African skin be too swift to term all African custom barbaric. Thus the Supreme Court in Dawodu v. Danmole reaffirmed that not all customs have to conform to modern standard of fairness and that the idi igi method of sharing property was not repugnant to natural justice, equity and good conscience.

Conclusion

Whilst prior to colonialism Africans lived a considerably primitive life, some customs are still very relevant to people as such the Courts of Law should not be to swift to dismiss them solely because they do not conform to European standards of fairness as the court rightly held in Dawodu v. Danmole (Supra).

TABLE OF CASES/STATUTES/AUTHORITY

1. Section 18(1),(2)&(3) of the Evidence Act
2. Eshugbaye Eleko v Government of Nigeria
3. Black Laws Dictionary
4. Zaidan v Mohosen
5. Olobodun v Lawal
6. Ukeje v Ukeje
7. Anekwe v Nweke
8. Section 42 of the Constitution of the Federal Republic of Nigeria 1999 as amended
9. Dawodu v Danmole

About the Author

Kuatsea Shagbaor Joseph is a penultimate Student at Faculty of Law University of Abuja.

He is widely versed in Law particularly areas of Constitutional Law, Equity and Legal System. He is also enthusiastic about Tax Law, Energy Law and Politics. Kuatsea Shagbaor Joseph is a Tiv boy who resides fully in FCT Abuja

Source: Sabilaw