Impact Of The Judicial Interpretation Of Repugnancy Doctrine On The Customary Laws And Customary Practices In Nigeria

Impact Of The Judicial Interpretation Of Repugnancy Doctrine On The Customary Laws And Customary Practices In Nigeria

Abstract

This research project focuses on the impact of the judicial interpretation of repugnancy doctrine on the customary laws and customary practices in Nigeria. It examines the origin of the Doctrine and how it has been used by courts to determine when Customary Laws is enforceable. The paper argues that incorrect interpretation of the Doctrine have caused the courts not to uphold customary laws. The research project recognizes the importance of culture in the lives of Nigerians. Accordingly, the argument is made that the doctrine must be seen by the courts in a manner that it allows customary law be engaged respectfully, keeping to the tenets of our customs while preserving the customary laws that exhibit our basic morals and destroying those that are repugnant to natural justice equity and good conscience.

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 state 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 conscience,and 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 a 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 enquire into the origin of the doctrine, 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 15 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.

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