REPUGNANCY DOCTRINE: AN ATTEMPT TO DESTROT OR PRESERVE CUSTOMARY LAW

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Department of Law

REPUGNANCY DOCTRINE: AN ATTEMPT TO DESTROT OR PRESERVE CUSTOMARY LAW   INTRODUCTION

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:

1. The customary law must not be repugnant to natural justice equity and good conceive
2. 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

CHAPTER ONE

DEFINITION OF TERMS

• REPUGNANCY DOCTRINE

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