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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:
i. The customary law must not be repugnant to natural justice equity and good conceive
ii. That such customary law must not be incompatible either directly or by implication with any law for the time being in force or
iii. 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 1which 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.2
DEFINITION OF TERMS
1.1 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.
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 State4 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.
1.2 NATURAL JUSTICE, EQUITY AND GOOD CONSCIENCE
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,6 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. Ogubunesan10 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 MOBSSEN12 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.
DISTINCTION BETWEEN LAW AND CUSOM
The provision of Section 15(1( (2) the High Council of Akwa Ibom State17 draws a distinction between law and custom and urges the High Court (of laws to apply not only native law but also its custom and to render them both inapplicable whenever and whenever both conflict with natural justice, equity and good conscience.
The basis of such distinction is that reference to custom, according to Allot18 is to enable the courts to have recourse to non-legal factor, for example in weighing evidence or what constitutes provocation.
In his article “the Repugnancy of the Repugnancy doctrine” Dr. Uchegbu has this to say “in view of the clean wording of the provision of the ordinance it is hard to accept that no importance should ignorance of what constitute native laws as distinct from custom cannot be attributed to the drafters of the provisions.
Justice Ollenu in an article20 maintains that “we should not of course include within the concept of law, forms of social conduct which are concerned are concerned with loss important aspects of social life which, though well established, yet pertain only to the sphere of social formalities and violated merely excite the displeasure or contempt of society. We are concerned with those norms the violation of which calls for the employment of sanctions directly affecting …property or the status of the offender”.
He further explained that the word “custom” implies three distinct concepts. It may be a rule regulating secular relationships between members of a tribe, family or society interse enforced parochially, it may be rules directly regulating religious or spirit observance, the breach of which it is believed will result in spiritual visitation or, it may be merely a rule of good conduct. This opinion was in consonant with Malinowski21 findings that with law there is compliance to obey whereas natural inclination not to believe otherwise goes with custom as the distinguishing factor.
It is has been a controversial issue whether or not customary law can be called a law. To John Austine and the later legal positivists, what is offer referred to as customary law amount to little more than positive morality22 Holmes asserts that; “the prophesies of what the courts will do in fact and nothing more pretensions, are what I mean by law”23 Cardozo, in his contribution, sees law “as a principle or rule of conduct so established as to justify a preduction with reasonable with reasonable certainly that it will be enforced by the courts of its authority is challenged”24 The emphasis placed your court by these and other jurist has led to the enormous assertions that primitive society having no formal courts cannot have law happily, this assertion have be refuted by Woyd when he declared “this argument not detain us here for traditional society with its councils of Oba and Chiefs sitting your judicial capacity do infact have courts”25
On a similar vien Dr. T. O, Ekas refuted Austinian stand on customary law by showing the inadequacy of Austin definition of Law and staking the functional role of law as a body of rules governing human conduct and recognized as obligatory by members of a society.26
In his writing about Lozi courts, Gluckman noted that: “…their jurisprudence share with other legal systems many basic doctrines, rights and duty and injury, the concept of the reasonablances, the distinction between statute and custom and between statute and equity or justice negligence and guilt, ownership and trespass”27
This is also true of the Ibibio legal system. Then system have the means of adjusting strict laws to conform with prevailing moral standard in society.
Moreover, there are numerous other proofs to show that African customary law are laws. Good-heart28 when prefacing his definition of law maintained, “ when prefacing his definition of law maintained, “my definition of law is simple one, and is intended to cover both law in a primitive community and in a highly developed modern state because I do not believe that its either possible or desirable to draw a line of distinction between them”.
Customs means the established or common usage of a particular people the Evidence Act in Section 2(1) defines custom as a rule which a particular district has from long usage obtained the force of law”. This definition was adopted by Nwokedi JSC in AGBAI V OKAGBUE.29
The court of Appeal in Aku V Aneku30 defined custom as: “the unrecorded tradition and history of the people which has grown with the growth of the people to stability and eventually become an intrinsic part of their culture. It is a usage or practice of the people which by common adoption and acquiescence and by long and unvarying habit has become compulsory and has acquired the force of law with respect to the place or the subject matter to which it relates”.
By these definitions the word ‘custom’ and the phrase ‘customary law’ are not only synonymous but coterminous. In ordinary parlance, it is not so. The word ‘custom’ may simply mean the established usages of a people, whether or not they have acquired the character of law. Thus NIKI toby JCA has noted that there is a clear difference or cleavage between the two. In OJISUA V AIYEBELEHIN31 the erudite justice of the Appeal Court said “the word “custom” may only reflect the common usage and practice of the people in particular matter without necessarily carrying with it the force of law. In other words a custom may exist without the element of coercion or sanction”. In other words it is those customs that people consider obligatory that have the character of law. It is instructive at this point to agree with remarks of HARTLAND when he opined “hence among civilized people who are accustomed to associate laws with written documents, the rules obeyed by savage people have been refused the nature of law and called only custom. But customs that one fixed and generally obeyed are distinct from law…on the positive and negative sides custom has been recognized as law”32
In addition to all these uniform views, the learned judges in the West African Court of Appeal gave legal force in support of law and custom as being unseparable monolithic in SUIJA AYOOLA AND OTHERS V MURITALA FOLAWIYO AND OTHERS33 while dismissing the view of the lower court that distinguished between muhamadan law and customs treating them as attentive. In then observation the court held that “we are of the opinion that …the court below approach the questions from the wrong angle, in that it attempted to spent up the phrase “mohamadar law and custom”…into component parts whereas in our view the phrase (whether with the word “or” with the word “and”) should be treated as indivisible and as meaning simply “mohamadan customary law or mohamadan lawful ‘custom’ and we think that both of these expressions mean the same thing and designate the lawful custom or customary law of the particular locality”.
It is our view and we so hold, that the statement of the West African Court of Appeal say it all and should be regarded as having put to rest any other speculation or artificial distinction which may be placed between law and custom.
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