Repugnancy Doctrine: An Attempt to Distort or Preserve Customary Law
Chapter One
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.
CHAPTER TWO
PURPOSE OF LAW AND LIMITS OF LAND
DEFINITION AND NATURE OF LAW
Law as a concept means different things to different people. To the scientist they talk about the law of floatation and the law of gravity. The economists talk about the law of demand and supply while the legislator sees law in terms of an enacted legislation.
However, it is instructive to note that the term law may be used in the general sense or in the technical sense. In the general sense law denotes “the written and unwritten body of rules, largely derived from customs and formal enactment which are recognized as binding among those persons who constitute a community or state, so that they will be imposed upon or enforced among those persons by appropriate sanctions.1
This is essence is the working defunction of law. In the technical sense, law is normative is that it deals with “law as it ought to be” it is concerned with what ought to happen when one thing happens. It must be noted that the punishment of the they does not follow as a natural consequence. This is because he may not be caught or even of caught, he may bribe the officials to escape prosecution.
In this regard, law is what the society lays down as a code of behaviour, based on the values and practices of the people.
In jurisprudential terms, the defunction of law are so varied that they are normally classified into schools of thought and these schools are the positivist school the Realist school, the sociological school, the historical and Natural Law School.
THE POSITIVIST SCHOOL
In pioneerijng the positive schools, Jeremy Bentham saw law in terms of command or order backed by sanction. He defined law as a “rule laid down for the guidance of an intelligent being by an intelligent being having power over hime.3
To him law was the command of the sovereign with the consequence of a sanction where the common was not obeyed. The “command” was regarded as “positive law” which is a general rule of conduct law down by a political superior to a political inferior. It is instructive to say that Austine who succeeded Benthan did not regard International Law as a Law since it did not fit into his concept and definition of law. It was also his view that customary law is only enforceable morally until it becomes judicially noticed and this appears to be conformity with the practice in Nigeria.
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CHAPTER THREE
THE NATURE OF CUSTOMARY LAW
The validity of positive law depends on its having been enacted by a sovereign or supreme legislative, be it an autocratic ruler like a colonial governor or a group of military men, that of customary law rest not on the will of a sovereign or supreme legislature but rather on its acceptance as a rule of good conduct of pattern of behaviour.
Customary law therefore, is an expression or a product behavioural patterns among people. An alleged custom which has not established itself as the accepted norm or pattern of behaviour or which though once accepted has been abandoned has no legal validity whatsoever. The feature of customary law that is stressed to the exclusion of all other is succinctly expressed in a dictum of Baraman, F.J in ONWONIYI V. OMOTOSHO.1 Customary Law he said, “is a “murrow of accepted usage” A particular customary law must be on existence at the relevant time and must be recognized and adhered to by the community. The native law and custom which the court enforce must be existing natural law and custom, and not that of by gone days”. It is the assent as maintained by Lord Alkin in illuminating passage on the nature of customary laws of the native community that gives a custom its validity, and therefore, barbarous or mild, it must be shown to be recognized by the native community whose conduct it is supposed to regulate”2
CHAPTER FOUR
CUSTOMARY LAW VERSUS CONSTITUTIONALISM
The basis for customary law versus constitutionalism is predicated on the premise not only indicating particular trend in cases involving discriminatory practices while still being respectful to customary law. This is particularly informative because it so often involves balancing customary values and individual equality rights, a task that is especially challenging where courts have to address parallel legal systems. In this wise, the trend indicate a desire to ensure constitutional guarantees of quality by giving primacy to statutory law when customary law conflict with either through the repugnancy doctrine.
CHAPTER FIVE
THE CHALLENGES OF CUSTOMARY LAW IN THE 21ST CENTURY NIGERIA
The dynamic nature of the society has been the greatest challenge to customary law in the 21st century. Customary law which is the oldest source of Nigerian law and its origin can be traced to the origin of the people for, in the words of Professor E. E. Essien1 wherever there is a people, there must be law, no matter how rudimentary”. Dundas2 rightly writes of “customary law as “the experiences of generations which successively have cost this and that aside tried many methods and found them to fail, until at last some course remained open which proved itself the most workable and acceptable, not because it met merely one requirement but because it fitted into all other inconstancies. Therefore it is a deeply noted code, and the experience and the intellect of generations have worked to make it one link in a chain of usages and ideas”.
Custom is a rule which in particular district has, from long usage obtained the force of law”. The basic attribute of such customary law is that it is organic, accepted and living law of the indigenous people, regulating then lives and then transactions. It is a mirrow of culture and the accepted usage of the people and imports justice to the Iwes of all those subject to it.
REFRENCES
- Cheshire, G. C.: Chesire and Burn’s Modern Law Real Property, 13th ed. London. Bulterworths, 1982.
- Chianu, E.: Title to Improvements on Land in Nigeria. Benin: Ernslee Ltd 1992
- Chukura, O. A. Digest of Nigerian Case Law, Vol. 1 (1981 – 1968) Ibadan: Gillford Press, 1974.
- Coker, G. B. A.: Family Property Among the Yorubas, London: Sweet and Maxwell, 1966.
- Egburonu, E.: How to handle lands cases in Practice, Basic right publication Ltd: Aba 2001.
- Elias, T. O. The Nature of African Customary Law. Manchester: University of Manchester Press, 1956
- Elias, T. O.: Nigerian Land Law. London: Sweet and Maxwell, London, 1971.
- Essien, E. E: General principles of Nigerian Law. Uyo: Golden Education Publishers, 1995.
- Essien, E. E.: Law of Credit and Security in Nigeria, Uyo: Golden Education Publishers, 2001.
