Repugnancy Doctrine and Customary Law in Nigeria: A Positive Aspect of British Colonialism.

Abstract

The doctrine of repugnancy owes it origin to the medieval period and
evolution of English equity. The doctrine was introduced into Nigeria
by the end of the 19th century via the received English laws 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 colonization. This paper argues that equity
did not originate from England; it is a universal concept of what is
‘good, just and fair', which is consistent with. S. 36(1) of the 1999
Nigerian constitution. The problem with our customary law is that it is
inundated with multiplicity of customs complicated by superstitions. It
is difficult to take judicial notice of it without conditionality. The
paper concludes by supporting the locus classicus in Eshugbaye Eleko
v. Government of Nigeria, and Elias' thesis that the doctrine of
repugnancy has a positive effect on the development of our customary
law by the removal of its superstitious and harsh elements. This is one
positive aspect of British colonialism.

Keywords: customary law, repugnancy doctrine, British colonialism.

African Research Review Vol. 2 (2) 2008 pp. 286-295