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Jurisprudential Issues in the Administration of Justice in the Yoruba Pre-Colonial Era…, THE ADVOCATE ISSN 0339 VOLUME 31 2015 The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria 193-213 Jurisprudential Issues in the Administration of Justice in the Yoruba Pre-Colonial Era vis-à-vis the English Law: Repugnancy of the Repugnancy Test Olaniran Quadri Oladimeji Introduction It would be accurate to posit that the word “jurisprudence” was the first of the social sciences to be born. Its provinces have been determined because the nature of the subject is such that no delineation of its scope can be regarded as final. For instance, someone may read any of the recommended standard textbooks on criminal or company law with assurance that whichever book he does read, he will derive much the same idea as to what the subject is all about. It is certainly not like that with books on jurisprudence because the word, “jurisprudence” varies so widely in subject matter and treatment that the answer to the question, “What is ‘jurisprudence’?” will be pretty much whatever anyone wants it to mean. This kind of answer will suggest that the question is complicated with respect, for example, to the use of the word. Meanings and Definitions of Jurisprudence Before an attempt is made to give definitions to the word “jurisprudence” as posited by some theorists, it should be said that the word cannot be defined in exactitude because it is elusive. There can be no doubt that it is desirable, from the beginning, to define and delimit the scope of jurisprudence because problems will arise as the term “jurisprudence” is not only vague but also difficult to define with accuracy. Therefore, to ask for the meaning of the word is to be reminded of the old adage, quothominestotsenlenliae. 1 For not only does every jurist have his own notion of the subject matter and proper limits of jurisprudence, but his approach to s governed by his allegiances or those of his society by what is commonly referred nowadays as his “ideology”. No doubt, such ideological factors are frequently implicit rather than openly avowed, thus Holmes’ description of them as “inarticulate major premises”. Nonetheless, they are to be discerned in juristic theories, both past and present. It has been said that traditional theories in jurisprudence reflect the old “ideologies” as 1 Terence. Phormio. 11. 14 The word “jurisprudence” is not generally used in the languages in the English sense. Thus, in French, it refers to something like our “case law” theories generale du droit being used to cover our meaning of jurisprudence. 193

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Jurisprudential Issues in the Administration of Justice in the Yoruba Pre-Colonial Era…, 193

THE ADVOCATE ISSN 0339 VOLUME 31 2015 The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria 193-213

Jurisprudential Issues in the Administration of Justice in the Yoruba Pre-Colonial Era vis-à-vis the

English Law: Repugnancy of the Repugnancy Test

Olaniran Quadri Oladimeji

Introduction It would be accurate to posit that the word “jurisprudence” was the first of the social sciences to be born. Its provinces have been determined because the nature of the subject is such that no delineation of its scope can be regarded as final. For instance, someone may read any of the recommended standard textbooks on criminal or company law with assurance that whichever book he does read, he will derive much the same idea as to what the subject is all about. It is certainly not like that with books on jurisprudence because the word, “jurisprudence” varies so widely in subject matter and treatment that the answer to the question, “What is ‘jurisprudence’?” will be pretty much whatever anyone wants it to mean. This kind of answer will suggest that the question is complicated with respect, for example, to the use of the word.

Meanings and Definitions of JurisprudenceBefore an attempt is made to give definitions to the word “jurisprudence” as posited by some theorists, it should be said that the word cannot be defined in exactitude because it is elusive. There can be no doubt that it is desirable, from the beginning, to define and delimit the scope of jurisprudence because problems will arise as the term “jurisprudence” is not only vague but also difficult to define with accuracy. Therefore, to ask for the meaning of the word is to be reminded of the old adage, quothominestotsenlenliae.1 For not only does every jurist have his own notion of the subject matter and proper limits of jurisprudence, but his approach to s governed by his allegiances or those of his society by what is commonly referred nowadays as his “ideology”. No doubt, such ideological factors are frequently implicit rather than openly avowed, thus Holmes’ description of them as “inarticulate major premises”. Nonetheless, they are to be discerned in juristic theories, both past and present.

It has been said that traditional theories in jurisprudence reflect the old “ideologies” as

1 Terence. Phormio. 11. 14 The word “jurisprudence” is not generally used in the languages in the English sense. Thus, in French, it refers to something like our “case law” theories generale du droit being used to cover our meaning of jurisprudence.

193

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will be seen in the course of the essay as those of natural law or of utilitarianism. It may be, though, that lawyers, whatever their philosophical leaning, have through their training and environment more in common than what divides them. Nor is law unique in its tendency to reflect the ideologies of its place and time, for similar characteristics will be encountered in many other fields in history, ethics, and psychology and in all social sciences. Nor have the natural science escaped. However, the close relationship of law to the social structure inevitably brings into prominence the ideological context of legal theory.2 It should be said that the Latin expression, jurisprudentia means either “knowledge of” or “skill in law”. The Roman jurists never developed any such subject as jurisprudential.3

In the sense of “knowledge of law”, the word sometimes described expositions of particular branches of law, e.g., the title “equity jurisprudence” was once given to a textbook on equity4. This use of the word, current on the continent, is no longer fashionable in Common Law countries. In a wide sense, “jurisprudence” is used also to describe the legal connections of anybody of knowledge: So “denial jurisprudence” “architectural jurisprudence” or “medical jurisprudence” would be titles for expositions of such aspects of dentistry, architecture or medicine as may be important in law.5

As will appear in word, least of all jurisprudence has a proper meaning there is also the argument that such studies as these are not scientific, which presupposes some special meaning of the word science. The reason for avoiding a term like medical jurisprudence is that this kind of expression is no longer current in English-speaking countries although occasional instances may still be found. It may be stated that in French law, lajurisprudence is the term applied to the body of law built up by the decisions of particular courts.

Also in England, it was not until the time of Benthan and his disciple, Austin, in the early part of the 19th century, that the word began to acquire a technical significance among English lawyers. The former distinguishes between examinations of the law as it is and as it ought to be (expository and censorial jurisprudence) being much concerned with law reform deontology. On this note, I want to make reference to some definitions given by some jurists on jurisprudence.

Holland defines jurisprudence as the formal signs of positive law. Salmond sees jurisprudence as the knowledge of law. George Palon says that the term jurisprudence is sometimes used as an imposing synonym for law. CK Allen defines it as the scientific synthesis of the essential principle of law. Julius Stone has described jurisprudence as lawyers’ extra version. According to him, it is the lawyers’ examination of the ideas and techniques of the law from present knowledge in disciplines other than the law. TA Cowan6

states that law is a craft that its craftsmen have selected out and reserved to themselves over the millennia: an area of human behaviour while the boundaries of these areas are not sharply defined and while what goes on inside of it is subject to so much dispute yet its existence can

2 Schwartz and Miller (1964) 70 Am. J Sociology 15.3 Ulpian’s remark in The Digest. Quoted in the opening of Justinian’s institutes4 Ames, Equity Jurisprudence.5 Dias, Introduction to Jurisprudence, p. 10.The term “medtco-Iegal jurisprudence” has largely been superseded by forensic medicine.

6 TA Cowan in the introduction to his book tilled, The American Jurisprudence Reader.

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be sensed even by a small child those who study the nature of these areas of human endeavour are engaged. In the study of jurisprudence, they may walk inside the law itself studying the relationship of its parts to one another and the relationship of the parts to the whole and they may be interested primarily in the interaction of law and other learned disciplines. Those who work within the structure of the law itself examining it bit by bit, section by section or in overall, are engaged in what is called analytical jurisprudence .Cowan then concludes that jurisprudence is the sum total of organised reflection on the nature of law and its relations to other learned disciplines.

Salmond describes jurisprudence as the name given to a certain type of investigation into law. An investigation of an abstract, of general and theoretical nature, which seeks to lay bare the essential principles of law and legal system. Salmond goes on to postulate that jurisprudence comprises the philosophy of law and it is a second order subject of philosophy whose aim is not to discover new rules but to reflect on the rules already known just as the philosophy of science concerns itself with scientific laws already discovered rather than the discovery of new laws. He identifies another branch of jurisprudence as consisting of the analysis of legal concepts like right, possession, ownership and sovereignty which are studied in the ordinary branches of law but notes that jurisprudence tries to build up a general and more comprehensive picture of each concept as a whole. He then concludes that in this respect, the writer on jurisprudence appears in the sense of a logician elucidating legal notions, unraveling confusion and constructing “synthesis” of legal concepts.

Furthermore, the following definitions offered by other jurists will provide further insight into what has been considered as the subject matter of jurisprudence. According to Ulpian,7

jurisprudence is the knowledge of things divine and human, the knowledge of the just and the unjust. Holmes8 says that jurisprudence, as “I look at it”, is simply law in its most generalised nature; every effort to reduce a case to a rule is an effort of jurisprudence. Dias 9 states that jurisprudential theory concerns thought about law on the broadest possible basis. Jolowuze describes jurisprudence as a general theoretical discussion about law and its principles as opposed to the study of actual use of law. Hall says that jurisprudence includes the search for ultimate concessions in terms of which all legal knowledge can be significantly expressed. Wortley states that jurisprudence is the knowledge of law in its various forms and manifestations. Cross states that jurisprudence may be roughly described as a study of a lawyer’s fundamental assumptions. Karl and Llewellyn10 see jurisprudence as a very broad one which means any careful and sustained thinking about any phase of things legal if the thinking seeks to reach beyond a practical solution of an immediate problem in hand.

From the foregoing, it is clear that jurisprudence is not and could not be a one-time or a one-answer subject. No wonder Patterson warns that “incursion into jurisprudence is always an adventure into the realm of ideas in which the adventurer must pick his ways among incongruent terminologies”. Dias has also counselled that the best guarantee of independence and originality in thought as far as jurisprudence is concerned is

breadth of view a sense of perspective and a sympathetic appreciation of what

7 Ulpian, Jurisprudence and the Law, p. 2.8 Dias, n.5, p. 16.9 Holmes, “The Part of the Law 1887, 10 Harvard Law Review.10 Kari and Llewellyn, “A Realistic Jurisprudence, The Next Step,” 30 Columbia law review

1930.

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people have said and are saying no one theory provides the best or exclusive avenue to truth and those who chose to tread one path rather than another are not for that reason misguided and in darkness.

From all the above definitions, it suffices to say that indeed, the problem of definition of words looms large in jurisprudence and transverses the entire terrain of law, thus creating a nightmare for the lawyers. Professor Ajomo MA notes that

law itself is mainly an exercise in controversy and so the teaching of jurisprudence begins on the hypothesis that words have no proper meaning except in a context which they are used by the speaker.

Hence, every of the definitions is correct about jurisprudence.

Nature and Scope of JurisprudenceThe appropriate subject of jurisprudence, in any of its different departments, is positive law. Meaning by positive law (or law emphatically so called) is law established or “positum” in an independent political community by the express or tacit authority of its sovereign or supreme government. As principle abstracted from the positive systems are the subject of general jurisprudence (or the philosophy or general principles or positive law), so is the expositive of such principles is exclusive or appropriate object.

Jurisprudence is the science of what is essential to law combined with the science of what it ought to be. It is particular or universal. Particular jurisprudence is the science of any actual system of law or of any portion of it. The only practical jurisprudence is particular. The proper subject of general or universal jurisprudence (as distinguished from universal legislation) is a description of such subjects and ends of law as are common to all systems. For instance, the law of contract and torts are concerned with different rights which one person may have against another. Jurisprudence, however, studies the meaning of the term “right”, how it is used and how it works. Similarly, the scope of jurisprudence extends to investigate such other legal concepts as acts, intentions, negligence, ownership and possession.

Jurisprudence concerns itself with such questions as: Is law dependent upon government for its existence? Can law exist independently of the government? Does law merely reflect the prevailing belief of the majority of individuals in a given society? Is it an instrument of social control through generalisation imposed by some dominant groups? Is it derived from some outside source? Is justice an inherent necessary character of law or is it an external standard by which the rightness of particular laws or of particular actions pursuant to law is to be measured? It would appear clear that the most bases of all legal concepts are the concept of law itself. If jurisprudence is concerned with the analysis of legal concept, the first problem is to analysis these basic concepts. At the centre of enquiry or analysis is the question: What is law? Attempt to answer this question has given rise to the theories about law which have been put forward through the various stages of human civilisation. Of these theories mention can be made of:

1. Natural Law Theory: which defines law as the dictates of reason;2. Imperative Theory of Austin: which defines law as the command of the sovereign

which he annexed to this sanction;

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3. Pure Theory of Kelsen: which conceives of law as a system of rules or norms;4. Sociological Theory of Roscoe Pound: which sees law as an instrument of social

engineering;5. Historical School of Savigny: which suggests that law should be a reflection of

common consciousness or a spirit of the people;6. The Realist Movement: which conceives of law in terms of its actual functioning and

operation, i.e., the practice of the court as Holmes puts it: “aprophesy of what the court will do and nothing pretentious is what I mean as law””

7. The Economic School of Hegel: which explains law in terms of class relations: law is seen as an instrument of oppression in the hand of the ruling class.

What has emerged from the discussion so far is that legal theory is concerned with law as it exists and functions in the society. Its various components are points where jurisprudence meets other disciplines such as sociology, economics, history, religion, politics, psychology, etc. It would, therefore, appear that one task before jurisprudence is to provide a link between law and these other disciplines and so help to locate it within its wider social context. Hence, interdisciplinary approach is being advocated for which has become imperative in the study of jurisprudence for the simple reason that a full understanding of the complexity of law and of man’s experience cannot be attained through the medium of any single discipline partly because there are some arbitrariness about the impartation of knowledge in the discipline. There is a good deal of dovetailing or overlapping among other disciplines.

For a proper understanding of any problem of importance in human experience, therefore, we need to draw upon the resources of several disciplines together with the facts of ideological differences among writers to which attention have been drawn earlier on which makes it difficult to define the province of the scope of jurisprudence with finality at any given time.

The English Common Law and African Common Law through “Proverbs” ComparedIt must be mentioned expressly that the English Common Law has been promoted to a level where it has been regarded as the beginning and end of justice or juristic excellence. O’ Sullivan notes that “the common law of England is one of the greatest civilizing forces in the world. Over a long series of centuries men have recorded their conviction of its essential worth and excellence….11 Hawarde’s Report of Cases remarks that the “the common law is the surest and best inheritance that any subject hath and to lose this is to lose all”. For William Blackstone, “The common law is the best birthright and noblest inheritance of mankind.”12

Without any room for dispute, it may be said that the Common Law of England is the brick of which the edifice of the American Constitution is built. Countless countries, most especially within the former British Commonwealth, operate legal systems seriously influenced by the Common Law of England. Nigeria is no exception. The Common Law of England is, statutorily, a law applicable in Nigeria. There is no specially unique thing about it since the idea implicit in its principles and assumptions are also shared by other people of Africa with particular reference to Yorubaland. It must be said that proverbs carry with them

11 Richard O’ Sullivan in his “Hamlyn Lecture” in 1950.12 The inheritance of the Common Law, London: Sevens and Sons, 1950, p. 3

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a force of law which the Common Law of England possesses. Although proverbs, folklores, etc, constitute our Common Law, it is by no means derogatory of the colonialists to say that our proverbs are unwritten.

On this note, therefore, it is proper and legitimate to examine and analyse a few principles of this common law of ours in order to determine whether or if they differ in any significant way from the principles of law generally referred to as the Common Law of England.

The Divine Right of KingIt is proper to see how the English people looked at their monarchs, an examination of what an average modern citizen might consider as most outrageous principles which at one time was a feature of the Common Law. The rule of the king by prerogative and by Divine Right meant that no citizen in the realm could query the king even if he did the most heinous wrongs. God had enthroned him, so to say, to rule and misrule with impunity, on this side of the gave at least.

The preference given to the divine right of kings in the English Common Law was manifested in the blatant refusal of King James ) to accept that the King’s powers were subject to, and limited by, the law. The occasion on which this happened is worth recalling. It was in 1616 in the Star Chambers. Sir Edward Coke was the chief justice of common pleas. Describing the incident, Lord Denning wrote:13

In the days of King James 1, there was a great judge called Lord Coke who boldly asserted the independence of the judges. On one occasion the king summoned all the judges before him and told them that he proposed to take any cases he pleased away from the judges for decision and to try them himself. He called in aid the authority of Archbishop Bancroft, who decided or declared that it was clear in divinity. Such power said the Archbishop, doubtless belongs to the king by the word of God in the scripture. But the chief justice told the king that he had no power to do so, and that all cases ought to be determined in a court of justice. King James replied: “I always thought and I have often heard the boast that Your English law is founded upon reason of that be so, why have not land others reason as well as you the judges?” The Chief Justice replied, “True it is, please your majesty, that God has endowed your Majesty with excellent science as well as great gift of nature, but your majesty will allow me to say so, with all reverence, that you are not learned in the laws of this your realm of English... which is an art which requires long study and experience before that a man can attain to be cognizance of it. The law is the Golden met-wand and measure to try the causes of your Majesty‘s subject and it is by that law that your Majesty Is protected in safely and peace.” King James, in a great rage, said, “Then is am to be under the law which it is treason to affirm”. The Chief Justice replied, “Thus wrote Bracton, “The King is under no man, but under God and the law.”

What then was our own situation regarding our kings? Using Yoruba as a specimen, ours is a country with multiplicity of tribes. No doubt,there may have been some tribes whose citizens were basically republican with only a token respect for traditional rulers. It is, however, certain that the major tribes such as the Hausa/Fulani, Yoruba and Edo, witnessed

13 Lord Denning, What Next in the Law, London: Butterworths, 1982, pp. 311-312.

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the rule of kings by full “prerogative and Divine Right”. Long before the advent of any foreign culture of colonial rule, the Yorubas, for example, by their common law, regarded the kings with such extraordinary, indeed supernatural, respect that they addressed and still address them simply as “Kabiyesi” (“Ka bi o ko Si” which means “questioning (or querying) him is out of question”. This means that it was forbidden to raise a query for the king to answer. Any wrong he did was without remedy. So total was the authority of the king within his kingdom and so final were his decisions and actions that if a person’s daughter, who was seen entering the king’s palace, was thereafter not seen again, that person was not allowed to do as much as go near the palace to ask what had become of his/her daughter. The “king’s foot” was said to have been “placed on the girl”.

In some parts of Yorubaland, the king is described as iku, ekejiorisa, i.e., “death, the twin brother of a god”. The king is to be feared the way gods and death itself are feared. The Ijeshas described one owa (crowned king) as “owaniniisokun, orisa 1’ aafin” (He is king on the street, but a god in the palace).

In Oyo, the king’s divinity was further exaggerated to make it unthinkable to plot against him even in faraway provinces. There is a saying, “osupangbeoke o mooyo, obangbe lie o moaraoko” (as the moon remains stationary and far away above), and yet knows over Oyo, the capital, so the king remains at home and knows what his subjects are doing in the province.

Till today, the Edos regard the Oba of Benin City as a god in human form. His law is still “law” to many of his subjects. Still today, in most parts of Nigeria, the common law of the people command so much respect for the institution of kingship that it is not permitted for anyone to say “the king has died”. The king, as a “god”, does not die, cannot die. For instance, to announce a king’s death, the Yorubas say the king has gone into the ceiling or rafter to conceal himself: Oba w’ aja’14. Some tribes say the king has joined his ancestors. Whatever you say, you are not permitted the licence of associating death with the king.

From the foregoing, it appears quite obvious that the principle of the divine right of kings and their offspring, and the king can do no wrong, were not unknown by indigenous societies before the advent of the British and their style of government. These things were part and parcel of our customs and traditions long before then. They were part of the unwritten common law of our people. The doctrine of sovereign immunity existed with us and was enjoyed by our kings (who incidentally, were the government)15 long before the British reached our shores

The only question left to be asked is: Are our judges willing and ready, just as Sir Edward Coke was, to tell the “king” (government) that he, with all his might, is under God and the law? For some, unless our courts are manned by men like Sir Coke, our society cannot know, much less experience, freedom and no one stands to be worse injured by such dereliction of duty by the court than the “king” himself. This, then, is a message to the judges who mann our courts: let the maxim continue to be valid here, as in England, that “rex non debetessesubhomme, sed sub dee et sub lege, quialexfacitregem” (the king is under no man yet he is under God and the law makes the king). From the foregoing, between the English Common Law and our own custom through the concept of the divine right of

14 Fabunmi, Yoruba Idioms: No 339.15 The word for “government” in Yoruba is Ijoba (Ijo-oba) meaning the meeting or conference of

kings-Royal Assembly.

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king.

The Rule against HearsayThis rule is firmly rooted in the Common Law of England which has found its way into the statute books (evidence laws) of all countries that were in the former British commonwealth. It should be said expressly that this Common Law doctrine is under the fire of criticism from commentators who feel that it is one of the devices employed by technicality to puncture the British system of justice thereby facilitating the escape of offenders from the grip of the law. Simply put, the rule against hearsay requires that a witness should not talk about something of which he has no personal knowledge. He is expected to rely on his own observation and personal recall of the matter in dispute. It is no more news that the doctrine against hearsay is discernable in our own common law before the advent of colonial law. For instance, the following proverbs are explicit enough on the doctrine against hearsay:

Ojumewakojoojueni, irohinko to afojuba (Ten eyes are not as good as one’s own, even though only two, news is not as reliable as eye witnessing).

This means that the account of an occurrence, even if related by five person (ten eyes), would still be less in quality than the detail a person gathers from witnessing the happening himself. Nigeria’s former President, General Ibrahim Babangida, on his return from Libya, was reported to have said in answer to a question put by a reporter, Ganiyajiji (Hausa) meaning, seeing dismisses hearing.

As a court marshal would conclude: “The General ordered me to shoot” is a better defence than “the sergeant told me that the General ordered the shooting”. The Wolof in Senegal say: Waldil, so guisseyjuemal (Deny, but what thou seest: you may deny anything else but it is not allowed for you to deny that which you have seen with your own eyes).

The conclusion that recommends itself from all the proverbs we have so far considered is that these rules are universal, written as it were, either in these rules in the very nature of man as an intellectual being or in the skies (enveloping the earth) by our very maker. To such rules no nation can be an exception. As English Common Law makes inadmissible in both civil and criminal proceeding so also the Yoruba culture does not temper justice on the evidence garnered by hearsay.

The Principle of Natural JusticeHear the other side or hear both sides and that no man can be a judge in his own case is the fundamental principle in the administration of justice in Common Law of England. To be precise, the twin pillars of natural justice are under the audi alterempartem (a man is to be heard before he is condemned) and nemojudex in causasua (a man must not be a judge in his own case). By these principles of natural justice, the courts are placed under a duty to listen to all the parties to a dispute before making up their minds on any of the issues involved in it.

Erie CJ once said that: “It is an indispensable requirement of justice that the party who has to decide shall hear both sides giving each an opportunity of hearing what is urged against him.”16 By this rule, which England herself received from Roman law, “no man is to be condemned, punished or deprived of his Property in any judicial proceedings unless he has

16 Herbert Broom in Re Brook, 16 C. B. H. S in a selection of legal maxim (10th edn), p. 65.

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had an opportunity of being heard”.17

The cases defy listing in which judges in England have emphasised, reemphasised and expanded this principle. In Fisher v. Keane,18 the court held that the principle is binding upon the committee of a club wishing to expel a member. By an unending chain of judicial decisions and by an uncompromising application of this principle of natural justice to cases before them, British judges have succeeded in anglicising this universal rule of natural justice.

Superior courts of record in Nigeria have also followed the footsteps of the England courts on this principle. After all, most judges of the superior courts in this country were, prior to 1960, British. They decided first cases which formed the foundation we had to build upon. The decisions of our courts went on appeal to the Privy Council. All these had the effect of building up a strong British background to our administration of justice.

The question that remains to be asked is: Was the principle of natural justice imported into this part of the world in the vehicle of any colonial law or was it with us before the advent of any colonial master? Is there anything in any part of our own indigenous common law which is embedded in proverbs and folklores and others that can prove that we did or did not apply this principle of natural justice before we had contact with the British? A common and popular saying among the people of Yorubaland goes thus to show that the principle of natural justice was not imported to us.

Agbotienikandajoagbaosikani: (He is the king among wicked who passes judgment after listening to evidence from only one side).

Another Yoruba proverb runs thus

Agbaebita o nranapakanaso: (Only a mischief-maker sews one side of a garment leaving the other side unsown and thereby giving the dress a distorted appearance).

Further on this, another proverb says:

Etigboekejikio to dajo:19 (Ear, hear the other side before you pass judgment)

Yet, another proverb on the doctrine or principle of natural justice which says that:

Tofu bakooju, ala a to: (When the eyes of one parity meet the eyes of the other party, the farm boundary dispute will be resolved).

Not only must the judge listen to both sides, he is required to deliver his judgment in the presence of the parties:

A ki i ifaorilehinolori: (We don‘t shave a person‘s head on his absence).

In his judgment, the judge is, by Yoruba juristic principles, enjoined to fairly weigh the

17 Per Parker, B in Re Hammer Smith Rent charge 4 Ex, 87 at 97.18 II ChD353.

19 Burton page 26

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evidence on the cases of both sides with unequivocal impartiality. The proverb for this principle of justice says:

Kniigun se ti obo ko Se, igunpa lori obopanidi: (What has the vulture done which the monkey has not done? The vulture is bald in the head, the monkey is similarly bald in the bottom).

The examples of proverbs given above surfice to show that audi alterempartern is not foreign to our legal system. It is a rule of natural justice which all intelligent beings cannot but respect. It is one rule that makes the judges so unique and onerous. It is quite easy to do injustice. All that is needed is listen to the first man that speaks and rule against the silenced party. It is believed by everyone that to sit to adjudicate over others is the most tasking aspect of a judge’s work because the intricacy of administration of justice includes faithfully observing what the audi alterampartern demands.

It was revealed that King James I, inspite of Lord Coke’s pronouncement, nevertheless went ahead to try his hand on some cases as a judge. He was said to have been so perplexed when he heard both sides that he abandoned the attempt in despair commenting: “I could get on very well hearing one side only, but when both sides have been heard, upon my word I know not which is right.”20

The foregoing proverbs and many more are our own common law maxims for requiring a judge to listen to all the parties before deciding any case. These are our own audi alterem partem by which customary tribunals assist themselves to do justice. We had them long before the British introduced their own rules of practice and procedure. It must be said that this rule of practice was laid down not by man but by his maker. Did God not turn to Eve in the Garden of Eden to listen to her own side after Adam had accused her of misleading him to eat the forbidden fruit?21 It is also fundamental to the administration of justice under the Common Law of England that no man should be a judge in his own case (nemojudex in causasua). The judges applied it to disqualify their king (King James I) from adjudicating in a case in which he was personally interested. Flarbet Broom put it this way:

It is a fundamental rule in the administration of justice that a person cannot be judge in a case wherein he is interested.., and, therefore, in the reign of James 1, it was solemnly adjudged that the King cannot take any cause, whether civil or criminal, out of any of his courts and give judgment upon it himself; but it must be determined and adjudges in some court of justice according to the law and Custom of England, and the judges informed the king that no king, after the conquest, assumed to himself to give any judgment in any case whatsoever which concerned the administration of justice with the realm, but these were solely determined in the court of justice...

The judge even applied the rule to debar anyone among themselves from deciding a case in which he was interested. They argued they had a duty to do so because it was against reason, if wrong be done any man that he thereof should be his own judge and they very often had recourse to the maxim, potestessesimul actor efjudex (no man can be a suitor and a judge at the same time). A good case for illustrating the application of this maxim of the Common

20 Lord Denning, n.13, p. 312.21 The Holy Bible: Genesis Chapter 3 verse 13.

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Law is Dimes v. Grand Juncture Canal Co.22 In that case, Lord Chancellor himself (who appointed the judges) was found to have made a decree in favour of the Grand Juncture Canal Company in which he was a shareholder, a fact which was unknown to the other party. The House of Lords, per Lord Campbell, held.

It is of the last importance that the maxim that no man is to be a judge in his own case should be held sacred and that is not to be confined on a cause in which he is a party but applies to a cause in which he has an interest.

Their Lordships continued:

We have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause took part in the decision. And it will have a most salutary effect on these tribunals when it is known that this High Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and should be set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence.

It is noted that our courts have applied the same principle with firmness not incomparable with that of the courts in England. It remains to be asked from the foregoing the question if this rule was brought to us or was with us before the British introduced their own laws. To answer this question, a brief allusion will be made into three of Yoruba proverbs that are relevant:

Farifari ko le lan ara re: (The barber can‘t shave his own hair).Abereko le gbongbon k obo ara re: (A needle, no matter how clever, cannot thread itself). Abereko le di ihoidiara re: (A needle cannot mend the hole at its own tail).

It should be stated that proverbs like these are interjected by the elders when a party tries to judge his own case. As soon as a party to a dispute attempts to dictate what the judgment should be in his own case, he is admonished to stop speaking because “the barber does not shave his own head” neither “can the needle mend its own hole”. By these short but pithy indigenous maxims, our societies expressed their acknowledgment of the rule of natural justice which precludes a person from adjudicating in a mater affecting him. But for the existence of such a rule in our common law, the green light for disorder would have been on, long before the arrival of the white men.

The Principle of Character EvidenceThe Common Law of England, as written by the judges, has always had it as a rule ofevidence that you must not attack the character of your opponent unless you do not mind yours being attacked in return. A party who exposes the character of the other by that very act

22 House of Lords cases, 759

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consents to his own bad character being exposed. It is a rule of evidence which the judges formed from the English adage, “Those who live in glass house must not throw stones”.

Our own indigenous common law find expression sometimes in proverbs, sometimes in folklores and fables. One of the folklores needs to be put down below for further elucidation that the rule of character evidence was in existence before colonialism.

Once upon a time tortoise had a slave whom he loved like a son. No one knew that the slave was not his son. He went everywhere with this slave. It happened that tortoise had a defect. He often told “small lies” to prop up his ego. One day, he went with his slave to visit the family of his fiancée. In the evening, he started to boast about himself and his achievements. “In those days,” he said, “I had three horses: one was white, another black and third brown.” He remarked that “I rode the white one on festive occasions, the black on other days”. Then the slave, irritated by these lies, cut in: “When did you have all these animals?” He asked in the presence of the fiancée and her parents. Tortoise concealed his embarrassment under the dignity of experience: Oh,” he replied, “You can’t possibly remember the time because I had not yet purchased you by then”. The slave was ashamed and unhappy that he should thus be disgraced. On their way home next morning, he complained bitterly and tortoise retorted, “A person carrying a leprous sport on his back must not make jest of another with a ring worm on his head”.

It is manifest from the foregoing that there is no difference between the English Common Law under discussion and the lesson taught by this folktale which represents a section of our forefathers’ unwritten evidence law. It must be said that the major purpose of evidence law is admissibility and the general test to be applied to know whether a fact is admissible or not in a case is relevance. Generally, a matter is admissible in evidence if it is relevant to any issue needing to be established in a case. Our own indigenous common law, embedded in proverbs, fables and folklores, also recognises that in any problem, only facts or things which are relevant can help to resolve matters. This is manifest in this proverb

“Enigbeleninsinoku,ariwolasannieninsunkunnpa, nitoripe Ekunko le gbeoku de sare e: (It is the person who digs the grave that partakes in burying the dead, the person weeping is making mere noise, because tears cannot lift a corpse into the grave).

The purpose of burying the dead is to preserve the health and life of the living by covering up the corpse which otherwise would endanger the public. Thus, the three things which are relevant are digging, lifting the corpse into the grave and covering up the grave. Our indigenous common law, so to say, rules “tears” irrelevant and, therefore, inadmissible in a case of burial.

The Doctrine of Caveat Emptor23

This doctrine means “let the buyers beware”. In English law, the duty is on the buyer to be careful. It is inconvenient for a seller to highlight the defects in his own commodity. As the English adage says, the fish monger never says his fish is rotten. It is discernable from the following proverbs that the doctrine of caveat emptor has been with us in this part of the 23 Caveat enptor literally means buyers beware.

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world from the beginning.

Oriagbeboadiyel‘oja. Osareraa, oyeogunofipaogun Nialadiyewataa : (You rush to buy a full grown hen in the marketplace; would the owner have offered it for sale if it were laying twenty eggs and hatching the twenty?)

Another proverb goes, thus:

Kosalakarat‘onta tutu: (No cake seller ever says her cake is cold).

Still on the doctrine of caveat emptor as revealed by our rich culture, manifest in proverbs we have:

Kosialamala, ti so pee t oun, kiyi: (There is no seller of amala food that would proclaim that her own is not edible).

It could then be said that to reinforce the same point about individualism in Yoruba juristic thought, what in English law is the principle of caveat emptor (let the buyer beware), is evident in the above proverbs.

The Maxim of Volenti Non Fit InjuriaThe English Common Law principle of volenti non fit injuria means that if one, knowing and comprehending the danger, voluntarily exposes himself to it though not negligent in so doing, he is deemed to have assumed the risk and is precluded from recovering for an injury resulting therefrom. Hence, it may be said that there is no difference between the Common Law principle of volenti non fit injuria and the following principles embedded in proverbs.

Ma to omisi mi larakiidetiodo: Don’t spill water on me should not go to the spring to fetch water. Mafara lain mikunioja: Don’t brush against my body must not go to the marketplace to buy thing.

The Concept of Legal PersonalityThe concern for social cohesion in Yoruba juristic thought would also explain the principle of collectivity in the definition (at least in certain) of what constitutes legal personality. The legal person in English law, for instance, is an individual personality or a body corporate. In Yoruba juristic thought, as in the traditional legal systems of most other African people, the legal personality may transcend the individual. John Mbiti24 explains the point in the following statement:

The guilt of one person involves his entire household including his animals and property. The pollution of the individual is corporately the pollution of those related to human beings, animals or material goods.

Hence, in Yoruba philosophy of law, we have

24 John Mbiti, African Traditional Religions and Philosophy, p. 207.

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Isueni lo to owoeniboepo: (It is a man’s yam that pushes his hand into the palm oil (in the process of being taken).

A man may suffer indignity or even incur legal penalty on account of a relation involved in a situation. Again, we have:

Owuasiwereki o ruigba re woojaawonaraile re nikiigba: The madman would like to carry his tray of junks to the marketplace only that his relations, whose reputation is also at stake ,will not allow him to do so.

Collective responsibility imposes collective obligation to ensure harmonious relations in the community, hence the proverb below is instructive:

Bi ara lie enibanjekokoroburukuti a kobabawiherehuru re konijeki a sun loru: If a kinsman is not warned in time when he eats poisonous insects, the resulting itch and discomfort will keep the whole family awake.25

It would seem that there are sayings which run counter to this notion of the corporate and collective responsibility in matters of crime and punishment in the proverb below:

Ikatiosenioba n ge: The finger that offends is that which the king cuts. Nitoriorandidaniafii 1‘oruka: We have names for the purposes of identification in case we would commit criminal offences.

Individualism certainly has a place in Yoruba juristic thought, as would be shown presently. But the direct fastening of responsibility to individuals in criminal matters implied in these sayings does not detract from the collective sense of shame but the reputation of the family would have been destroyed.

The Doctrine of Sanctity of ContractUnder the Common Law of England, a contract is an agreement between two persons and the essentials are offer, acceptance and consideration. Where the term of the agreement cannot be fulfilled by the party who has taken consideration, he is bound to refund it. This precisely is the position expressed by these proverbs:

Bi ebitibapaeku a sifieyin Funeleyin: (If the trap fails to catch the rat, it has to return to the owner the palm-nut placed on it as a bait).

The courts are bound to give effect to a contract between two persons once an agreement is proved even if the terms of the contract are more favourable to one party than to the other. The fact also that one of the parties has not acted wisely by entering into such a contract is irrelevant for the purpose of enforcement. The principle receives the blending of our own common law, thus:

Ore nje ore, ojanjeoja. Aki dupe motaopo: (A gift is a gift, a sale is a sale but no one

25 Delano Page

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will thank you for I have sold it to you cheap).26

African Equivalence of English Maxims of EquityThe growth of the majority of African countries’ legal system has shown that though there might be benefits derived from the effects of colonisation, but the truth must also be told. Not allowing these countries’ systems of law to grow has several negative effects on the growth of their indigenous laws. Many mythical dispositions have been subject of thought by many as to misconceptions surrounding the legal systems of many African countries. Pre-colonial administration of justice and law in many of these countries, particularly the Yoruba people of Nigeria, has shown some similarities with the growth of the English Common Law.

Some basic principles of law in the English law also have their equivalents in the African jurisprudence. For instance, the principle of fair hearing in African jurisprudence is portrayed in the aphorism, agboejoapakan da, agbaosikani (you cannot decide a case on the submission of one party). Also, the principle that you cannot be a judge in your own case is exemplified in Bi a bagbeokofun were, yoorokosodoara re (if a madman is given hoe, he will weed grasses) and that Nitoriti a baa da oranniafiisomol‘oruko (we bear names, for purposes of identification, in case we would commit criminal offences) while the doctrine of judicial precedent is rooted in ilelaawoka to somol’oruko (lineage dictates the name by which a child is christened). These and many more are conspicuous.

Thus, the following are the African equivalents of the popular maxims of equity:27

Equity will not Suffer a Wrong to be without a RemedyAs JO Fabunmi28 puts it, it is the duty of the court to provide a remedy for a plaintiff if none has been prescribed in the statute book; for where there is a right, there must be remedy (ubis jus ibiremedium).29 The Yoruba equivalent of this is captioned in the Yoruba jurisprudence that Agbakiiwalojakoriomotitunwo (an elderly person cannot be present in the market place and allows the head of a young baby to hang).

Equity follows the Law The Yoruba equivalent is Esiniwajunit’eyin i wosare (the horse which runs ahead challenges the one behind to follow suit).

Where the Equities are Equal, the Law PrevailsThe Yoruba equivalent of this maxim is summed up thus: Ojuoroniilekeomi,Osibatani I lekeodo (no matter the size of the river, water-lettuces stay afloat).

Where Equities are Equal, the First in Time Prevails Its Yoruba equivalent is Bi igiba Woluigi toke ni a koyan (when trees fall upon trees, the topmost is first of all removed); also, Bi ma ba n jonitojoomoeni, taraenilaakoya: (when a parent and his child are both ablaze, the parent first of all extinguishes the fire on himself).

26 J.O Ajibola ,Owe Yoruba, lbadan 8th imprinted p. 16.27 William Idowu, African Philosophy of Law, Ile-Ife: Obafemi Awolowo, University Press.28 Equity and Trusts in Nigeria (2nd edn), Ile-Ife: ObafemiAwolowo University, 2006.29 David Hume, Philosophical Works, Vol. 111, 228-229.

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He Who seeks Equity must do Equity The Yoruba equivalent is eniti o ba da omisiwaju, yioteile tutu (Eni bale agba da ko se arugbo bore) (he who pours water on the floor will walk on the wet ground).

He Who comes to Equity must come with Clean HandsThe Yoruba equivalent of this is, A kii taojaerupe, kagbowookuta or inurerenigbeniikakiigbeeniyan: (one cannot plant tomatoes in the farm and subsequently harvests yams).

Delay defeats Equity or Equity aids the Vigilant and not the Indolent (vigilantibus non dormientbusjurasubveniunt) The Yoruba equivalent is ijafaralewu or ai tete mole, ole n mu oloko or ‘eniyaralogunigbe (delay is dangerous).

Equality is Equity The Yoruba equivalent is Aparokankogajuokan lo, afieyi to ba gun oriebe (no fowl is taller than the other, unless one climbs a heap).

Equity looks at the Intent rather than the FormThe Yoruba equivalent of this is Eniyan n woju, Olorun n wookan (‘Ohun to waleyinefaojueje lo’ or ‘Oyelagba a wo (human observes the physical, God observes the heart).Equity looks on that as Done which ought to be Done The Yoruba equivalent is, Ibiti a fegbin obi si, obi ti la le hunibe (when a colanut tree grows at a location where one pre-planned to plant it, it is deemed planted).

Equity inputs an Intention to fulfil an Obligation The Yoruba equivalent is Bi afieniyanjoyeawodi, o ye ko le gbeadie or A debieyin ma koagba ole ni’ or ‘Iseyiise re ni, o nio n lo soko, o batioko de, o ode baa (a person in the position of an eagle is expected to catch chicks).

Equity acts in Person AmThe Yoruba equivalent is Ojuawolawofiigbobe ( soup is served only in a plate and not at its back).

Principle of Caveat Emptor (buyer beware)The Yoruba equivalent is Oriagbeboadieloja, o sare be moo, se o ye ogun fi pa ogunnialadietaa: (you rush to buy a full grown hen in the market, would the owner have offered it for sale if it were to lay twenty eggs and hatch them all).

Ownership of Prcaty The Yoruba equivalent is A kugbaAkatalowoakiti, koseni to je gba ‘le baba omolowoomo: (one cannot deprive a monkey of its agile spirit; a man cannot be deprived of his father’s estate).

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Circumstantial EvidenceThe Yoruba equivalent is Ajekelanaomoku lon taniko mope aje to kelana lo pa omo to hi loni je (the witch sounded alarm, to wreak havoc yesterday, and today the child has died,, who does not know that the witch that sounded alarm yesterday is responsible for the death)?

It should be noted that almost all the doctrines or principles of English legal system have their African equivalents as evidenced in these Yoruba proverbs. It is, however, disheartening that many of these equivalents were consistently overlooked by some authors because of premeditated sentiments and frivolous objectives.

How Repugnant is the Repugnany Test?The rule of repugnancy is to be enjoined by the high courts on customary laws. To observe these rules, the customary law must not be repugnant to natural justice, equity and good conscience. This clause has been used to strike down rules of customary law considered uncivilised. But courts have never attempted to explain in details the meaning of the clause. In Lewis v. Bankole, Speed Acting CJ said inter alia:

I am not sure that I know what the terms “natural justice, equity and good conscience” mean. They are high sounding phrases. It would not be easy to offer a strict and accurate definition of the terms.

The doctrine of repugnancy test came about under the English law to examine our law in the bid to jettison and relegate customs and laws that are considered inappropriate and having deleterious effects on the dignity of the human person and pervert the course of justice, thereby perpetrating “evil” in the name of practices or customs. This test has been given judicial approval in the different cases. JO Asein30 presents the case of Nkeje v. Nkeje,31

where Igbo culture that prevents a daughter from inheriting part of her deceased father’s estate was rendered unconstitutional, null and void. In the case of Edet v. Essien,32 the attempt by a man, who was betrothed to a lady, to take possession of the lady’s children from another marriage, for failure of the new husband to return earlier bride price, was rendered by the court as being repugnant to natural justice, equity and good conscience. Also, the Igbira customary law was rejected in the case of Mariama v. SadikuEjo,33 where a man laid claim to a child born about 15 months after parties had last had intercourse, but less than ten months after divorce. The rule was that a child born within ten months of divorce belongs to the divorced husband, and not the new husband. Rejecting the judgment, as being repugnant to natural justice, equity and good conscience, Holden J said,34

The native law and custom which the present respondent asks us to enforce would have this girl taken for lfe away from her natural parents, the appellant and her present husband, and given to a total stranger. We fell that to make such an order

30 JO Asein, Introduction to Nigerian Legal System (2nd edn), Ababa Press Ltd, 2005. 31 (2001) 27 W.R.N 142.32 (1932)11 N.L.R47.33 (1961) N.L.N.L.R 81.34 JO Fabtmmi, Eciuity And Trusts in Nigeria (2nd edn), Ile-Ife:Obafemi Awolowo University

Press Ltd, 2006.

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would be contrary to natural justice, equity and good conscience, and we are therefore not prepared to do so.35

All these customs were rejected using English repugnancy test as being repugnant to natural justice equity and good conscience, as laid down in the English legal system. These decisions are unequivocally well decided. As novel as the test appears, it leaves some questions unattended. By what standard is natural justice measured? What does equity portend? What amounts to good conscience? In whose mind would good conscience be established? To answer these, the following reasoning from the understanding of African legal system are pivotal:

1. The concept “nature” is applicable to humanity irrespective of origin; hence the term “natural justice” is generic.

2. Equity simply, is regarded as equality, being subjected to same conditions, using the same criteria including the dictate of such standard.

3. Good conscience is a safe and unambiguous resolution or inference that is devoid of bias, sentiment and favouritism regardless of colour, race, origin and language.

4. Good conscience is established in the mind of the ordinary man in right his senses that is capable of making decision understand and respect others’ decisions.

From the foregoing, it would be inferred that what is repugnant should be determined the test of a reasonable man36, irrespective of race or colour, and not by a lone validity test of the English legal system. It will not be out of place to have natural justice, using African jurisprudential standardised tests as yardsticks. The idea that some African customs alone should pass validity test is condescending. Hence, the test of African customs, in the bid to establish natural justice and good conscience using English standardised tests, having employed tests that are strange and foreign to African context . In effect, what is repugnant should also be determined by African standardised tests, even in the event of English law. For instance, gayness and lesbianism are homosexual relationships, against the natural biological order, have developed to the point of marriage. What is considered as misnomer and taboo in African context has received both statutory and judicial approval in the English legal system, thereby making it legal. Similar to this is abortion which naturally amounts to a termination of live process. This, in turn, aids promiscuity and infidelity. This is guarded against in African context to protect the societal etiquette in regard to chastity. This has also been legalised under the English legal system. Polyandry is another phenomenon that is rampart in some parts of the western world, let alone pornography, which is sometimes disgusting and usually triggers the rate of unwanted pregnancy and the criminal offence of rape. The concept of colonialism, imperialism and the contemporary neo-colonialism, being yardsticks of exploitation and modern slavery, used by the western world against their former colonies, especially the African countries, are all inimical to natural justice, equity and good conscience. If African jurisprudence standardised tests were to be applied to these and other related phenomena or disasters in English laws, they would be unequivocally adjudged to be repugnant to natural justice, equity and good conscience, thereby failing the test.

35 (1961)N.L.N.L.R 81.36 This is determined in Africa by considering the case, making references to age, sex, and

obligation of the ‘man’ contemplated, in line with the circumstance.

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Therefore, the question as to the standard of repugnancy should be a subject of definition to, and adjudged, the various laws and customs in different legal systems so that the standard as it applies under the English law should not apply to the Chinese legal system and the former not apply to the Nigerian legal system.

RecommendationsBy way of proffering solution to the aforementioned myths, documentation of African philosophy, African customary laws and African jurisprudence is a plausible venture in which African writers must take cognisance of and incorporate into their writings to deep it into the sea. While I will not recommend that the African principles of law be codified and given effect of law, due to the influence, if not monopolistic absorption by the English law, efforts should be made to document them for easy access, reference, and to serve as a guide in the application of the law. Also, the perspectives forming the bases of beliefs of earlier western writers are faulty and need to be re-examined. Efforts should be made by the western world writers to accommodate, accept and integrate the African practices as regards the principle and nature of Law and Jurisprudence, into their works.

Meanwhile, the idea that some African laws are repugnant to natural justice and good conscience, using English standard may in itself, be repugnant, having employed tests that are strange and foreign to African context. In effect, what is repugnant should be determined by African standardised tests. Therefore, Africans must also conspicuously and prudently apply African principles of law and jurisprudence in their spheres of lives, governmental or nongovernmental, especially, when English laws seem to have more damaging effects, inapplicable or too rigid. For instance, the English doctrine as exemplified in winner takes all, and loser loses all, sometimes worsen cases rather than resolve them. Hence, it should not be applied in every stratum, for this may sometimes be too rigid. African jurisprudence recognises predicaments with the technicalities of the law in the English court which is illustrated in Akutikootubo sore (There can never be brotherliness again after litigation). To forestall this, it thereby offers mechanisms or fora for an amicable settlement of disputes, for the handshake of peace, brotherliness, continuity and the peaceful co-existence in the society. This is reflected in African dispute settlement (court) processes.

Interestingly, the concept of peaceful co-existent, as portrayed in African traditional courts, are being adopted even in the English legal system. These are now recognised and integrated into their system as a way of mediation, conciliation, arbitration and negotiation. Omoniyi Adewoye states that the need to maintain social equilibrium as the primary objective of judicial administration has attracted the attention of American jurists and legal scholars. The repugnancy nature of the repugnancy test is that which at the moment looks jurisprudential and philosophical with different positions and opinions. But with gradual efforts, we may get rid of the erroneous and controversial test.