Repugnancy Doctrine: An Attempt To Destroy Or Preserve Customary Law
The introduction of the British Common Law, the Doctrine of Equity and the statute of General Application by Ordinance 3 of 1863 into Nigeria did not abolish the customary law of the people. Rather, the statute introducing such English Laws expressly made provision to the effect that British established courts in Nigeria should observe and enforce the observance of the Customary Law of the people.
However, it is instructive to say that Ordinance 4 of 1876 provided for the preservation of such customary laws in clear and unambiguous terms. Section 18 of Ordinance 4 of 1876 enjoined the British established courts in the colony to enforce the observance of the customary laws of the people of the colony.
Subsequent local legislations over the years have since continued to retain these legislation. In essence, every High Court in each of the twenty one jurisdictions in the country is enjoined to observe and enforce the customary law of the people in its area of jurisdiction.
In the light of the above there are however, three pre-requisites to be fulfilled before the court can observe and enforce any customary law and these are:
The customary law must not be repugnant to natural justice equity and good conceive.
That such customary law must not be incompatible either directly or by implication with any law for the time being in force or Contrary to public policy.
The pre-occupation of the research is protruding of this research is protruding insight into the meaning of the doctrine and its applicability in Nigeria. Of note is its applicability and relevance on our socio-cultural environment.
The trend of discussions in this work is to acquire into the origin of doctrinal, the purpose and limit of law, nature and classification of customary laws and the basic statutory provisions such as Section 14(3) of the Evidence Act and Section 20 of the High Court Law of Akwa Ibom State 1 which contains the repugnancy and public policy test. Finally we will carefully examine the judicial approach and the implication of this approach to our legal and socio-political setting.
DEFINITION OF TERMS
The doctrine of repugnancy owes its origin to the medieval period and evolution of English Equity. The doctrine was introduced into Nigeria by the end of the 19th century by Ordinance 3 of 1863 which received English Law into our legal system. The essence was to test our customary law for acceptability.
The issue has been whether the application of the doctrine by Nigerian courts has an English colouring as a result of colourisation. That equity did not be over-emphasized as it is taken to be a universal concept of what is ‘good’, just and fair; which of course is consistent with Section 36(1) of the 1999 Constitution of Nigeria. The problem of our customary law is that it is undated with multiplicity of customs complicated by superstitions. It is difficult to take judicial notice of it without conditionality.
The Repugnancy Doctrine, therefore is that the rule of customary law which is sought to be enforced must not be repugnant to natural justice equity and good conscience. The repugnancy clause is found in both the early and modem statutes dealing with the administration of justice in Nigeria. Section 19 of the Supreme Court Ordinance 19143 is one of the earliest provisions on the repugnancy test and states as follows:
“Nothing is this Ordinance shall deprive the Supreme Court the right to observe and enforce the observance or shall deprive any person of the benefit of any law or custom existing in the jurisdiction, such law and custom not being repugnant to natural justice, equity and good conscience and in case where no express rule is applicable to any matter in controversy the court shall be governed by the principles of justice, equity and good conscience”. Although the above Ordinance have been repealed, subsequent enactments have continued to adopt the wordings of its repugnancy clause with slight modifications. Accordingly, the repugnancy clause is found in the High Court Laws of various states of the Federation. Section 20 of the High Court Laws of Akwa Ibom State provides as follows: “the court shall observe and enforce the observance of every local custom and shall not deprive any person of the benefit thereof except when any such custom is repugnant to natural justice, equity and good conscience.”
Thus, rules of customary law must pass the repugnancy test before they are enforced by the court.
The term natural justice, equity and good conscience has always been or sure in the throat as it has been difficult to concede that an accurate meaning of the phrase, natural justice, equity and good conscience cannot be given. Speed Ag. C. J. in the case of Lewis V Baukole5 stated that “As to the second essential, I am not sure that I know what the term “natural justice and good conscience” mean. They are high sounding phrases and it would of course not be difficult to hold that many ancient customs of the barbaric times are repugnant thereto, but it would not be easy to offer a struck and accurate definition of the term”.
In the more recent case of Mojekwu V Ejikeme, the Court of Appeal attempted an explanation out still acknowledged the difficulty in giving a precise legal definition to the words natural justice”.
The expression “natural justice” generally means justice according to or pertaining to nature and therefore inborn. It is not the work of man and therefore cannot normally be interfered with by man. Although the expression is fluid vague and mostly incapable of a precise meaning, the above law creates a situation where the High Courts of Akwa Ibom State are statutory enjoined not to observe and observe and enforce customary law which is inconsistent with natural justice.
It was Aristole who proclaimed and aptly to that “man is the best of animals when he is moderated by law, but the worst of the beast when he lives without law and justice”. If this statement is true, as indeed it is, then the indispensability of law comes to the fore.
The next question is what would the society be without the law. T he above paradigm seeks to reiterate the duty of which any society in need of decorum and justice, has in developing customs and laws that becomes the mirror of the society.
The expression customary law has many defunction as there are lawyers. These defunctions are derived from statutes, case laws, as well as text writers. The Evidence Act cap 62, defines a custom, “as a rule which, in a particular district, has from long usage obtain the force of law”7 The Eastern Region Law No. 21 of 1956 defines customary law as a “rule or body of rules regulating rights and imposing duties, being a rule or body of rules which obtains and it is fortified by established usage and which are appropriate and applicable to any particular causes, action, suit, matter, dispute, issue or question”.8
Also, Ghana Interpretation Act 1860 defines it to “consist of rules of law which by custom are applicable to particular communities in Ghana, not being rules included in the common law under any enactment providing for assimilation of such rules of customary law as are suitable for general application”.9
Again from the jurisprudence of courts, customary law has been variously interpreted.
In Oyewumi V. Ogubunesan customary law as “the organic or living law of the indigenous people in Nigeria which regulates then rights and transactions”. Furthermore, in Agu V Ikewibe” customary court can be seen as “those rules of conduct which persons living in a particular geographical region recognizes as binding in then relationship with one another and amongst themselves”. The decision of the court in KHARIE ZAIDEN V FATIMA KHALIL MOBSSEN add credence as to what customary law is all about. And in this wise, the court defined customary court as “the system of law, not being the common law, and not being a law enacted by any competent legislative in Nigeria, but which is enforceable and binding in Nigeria as between the parties subject to the way it sways”.
To complement these definitions given by statutes and case laws, text writers have also advance then own definction of what customary law is all about. P. C. Lloyd defines customary law as; “the ancient law, the law which has always been observed. Its supposed antiquity”.13 In his book, the Nigerian legal system, A. O. Obilade 14 defines customary law as “customs accepted by members of a community as binding among them” “the law of a given community” according to Dr. Yaslim O. Ekas15 “is the body of rules which are recognized as obligatory by its members”. This recognition must be in accordance to then social imperative because, operating in every commonly is a dynamic of social conduction, an accepted norm of behaviour which the vast majority of its members regard absolutely necessary for the common will. This determinant of the ethics of the community is it social imperative.
A perusal of all these definitions will reveal that emphasis has always been or acceptance, usage, flexibility as well as sanction. In Nigeria, it should be appreciated that the use of a single term customary law does not indicate that there is a single uniform set of custom prevailing in the country. It is used rather as a blanket description covering many different customs. It include not only tribal or ethnic laws but also Islamic laws. In Section 2 of the Native Courts Laws of Northern Nigeria16 it was explicitly provided that “native law and customs include Muslim law”. Thus for practical purpose Muslim laws and various ethnic or tribal laws are treated alike.