REPUGNANCY TEST OF CUSTOMARY LAW

Nonso Robert Attoh

Faculty of Law,

University of Nigeria, Enugu state

2015/2016 Session

Formulation of the Test in Statute books

• The Evidence Act captures this test as follows “In any judicial proceeding where any custom is relied upon, it shall not be enforced if it is contrary to public policy or is not in accordance with natural justice, equity and good conscience” – section 18(3) Evidence Act 2011

• The High Court Laws of Lagos state captures the test as “The High Court shall observe and enforce the observance of customary law, which is not repugnant to natural justice, equity and good conscience…”

• Other statutes containing the identical test include Supreme Court Act, Court of Appeal Act, Interpretation Act, Customary Court Laws of the various states and Area Court Laws of the states

COURT’S APPROACH TO APPLYING THIS TEST

• The courts have adopted an ad-hoc, flexible, case by case approach to determining when a custom is repugnant to equity, natural justice and good conscience and have never attempted a conclusive definition of the test.

• They have however laid down the following interpretative guides to help in understanding this test

• 1. the triad “equity, natural justice and good conscience is to interpreted conjunctively and not disjunctively – Okonkwo v. Okagbue (1994) 9 NWLR pt. 368, p.301

• 2. this test impliedly refers to “barbarous” or uncivilized customs which have to be rejected – Laoye v Oyetunde (1944) A.C 170, Eshugbayi Eleko v. Government of Nigeria [1931] A.C 662

• 3. the standard for deciding what amounts to repugnance is not the standard obtainable in a community at an advanced level of civilization or development like the English, rather the courts have to look inwards towards a Nigerian jurisprudence – Lewis v. Bankole (1908) 1 N.L.R 81, Mojekwu v. Ejikeme (2000) 5 NWLR 402 , Dawodu v Danmole(1958) 3 F.S.C 46

COURT’S INTERPRETATION (CONTD)

• 4. A custom is not necessarily repugnant because it denies a person a right to which he is entitled in English law Rufai v Igbira Native Authority (1957) N.N.L.R 178

• 5. Equity or natural Justice is not used in its modern technical term but rather in its broad sense as being equivalent to natural justice or morality and embracing almost if not all the concepts of good conscience. natural justice means equity and natural law. Natural justice and equity here mean the same thing – Okonkwo v. Okagbue (supra)

• 6. The word repugnance ordinarily means offensive, distasteful, inconsistent or contrary, while natural justice means according to or pertaining to nature. Good conscience as used here connotes some notions of a moral sense of the right qualities – Mojekwu v Ejikeme (2000) 5 NWLR 402 , Okonkwo v Okagbue (supra)

• 7. The issue of repugnance is a question of law which need not be pleaded but can be raised during address or even suo motu by the judge. Okonkwo v. Okagbue (supra)

• 8. The court should take note of contemporary developments in the globalized world in reaching its decision – Okonkwo v. Okagbue (supra)

EXAMPLES OF CUSTOMS DECLARED REPUGNANT BY THE COURTThe courts have declared only customs they consider below any civilized form of conduct as repugnant and oftentimes the customs declared repugnant are also found to be contrary to public policy. Examples include

1. Women to women Marriage – Meribe v Egwu (1979) 3 SC 23, Ayika v Odigie

2. Marriage to a dead person – Okonkwo v Okagbue (supra)

3. Custom denying a woman the right to give evidence in relation to a land subject of customary Occupancy – Uko v Iro (2001) 17 WRN 172

4. Custom denying a person accused of armed robbery the right to defend himself – Guri v Hadejia N.A (1959) 4 FSC 44

EXAMPLES OF CUSTOMS DECLARED REPUGNANT BY THE COURT(contd)• 5. Disposition of the property of a deceased by his brother while the

widow is still alive Nzekwu,u & Ors. v. Nzekwu & Ors., (1989) 2 NWLR (Part 104) 373 , Lawal Osula v Lawal Osula (1993) 3 NWLR pt.274, p.158

• 6. Custom awarding custody of children to persons other than the biological father for flimsy reasons Edet v. Essien (1932) 11 N.L.R 47, Mariyamu . Sadiku Ejo (1961) N.R.N.L.R 81

• 7. Custom entitling a slave owner to administer the property of his deceased slave Re Effiong Okon Ata (1931) 10 NLR 65

• 8. Custom denying women the right to inherit their father’s property – Ukeje v Ukeje (2014) LPELR-22724(SC) Asika v Atuanya (2008)

Examples of Repugnant Customs (contd)

• 9. A custom that allowed a husband to divorce his wife at will, but the wife cannot obtain a dissolution of the marriage without the consent of the husband – Solomon v Gbobo (1974) 2 RSLR 30

• 10. Custom requiring the return of presents given to a wife at the point of dissolution of a marriage Okoriko v Otobo (1961) WNLR 48

• HOWEVER IN Uwaifo v uwaifo(2013) 10 NWLR (Pt 1361) P 185 See also Agidigbi V. Agidigbi (1992) NWLR 98; and Ogiamen V. Ogiamen (1967) NWLR 245, – the court upheld the Benin law of primogeniture that entitles the eldest son to exclusive inheritance of the principal house of his father (igiogbe)

MERIBE V EGWU (1976) LPELR-SC 48/1975

• In every system of jurisprudence known to us, one of the essential requirements for a valid marriage is that it must be the union of a man and a woman thereby creating the status of husband and wife. Indeed, the law governing any decent society should abhor and express its indignation of a 'woman to woman' marriage; and where there is proof that a custom permits such an association, the custom must be regarded as repugnant by virtue of the proviso to Section 14(3) of the Evidence Act and ought not to be upheld by the court. We however do not think that on a close examination of the facts of this case, there was a 'woman to woman' marriage between Nwanyiakoli and Nwanyiocha.- Per C.O Madarikan Jsc

MOJEKWU V EJIKEME (2000) 5 NWLR 402

• I must express the point here by which I will continue to stand that human nature, in its most ‘exuberant prime and infinite, telepathy’ cannot support the idea that woman can take the place of a man and be procreating for her father via a mundane custom. She stays in the father’s house and cannot marry for the rest of her life even if she sees on honest man who loves her. I cannot, and do not believe that the society as it is presently constituted, will for long acquiesce in a conclusion so ludicrous, ridiculous, unrealistic and merciless, more especially as we march on into the next millennium. The polity, as presently constituted, cannot, in my view, contain what Nrachi custom stands for. It is not neat. It is not neat. It is an antithesis to that which is wholesome and forward- looking … the custom is perfidious and the petrifying odour smells to high heavens … I have no hesitation in declaring that custom is against the dictates of equity. It is no doubt repugnant and contrary to natural justice, equity and good conscience. – Per Fabiyi JCA

OJUKWU V. AGUPUSI (2014)LPELR-22683(CA)

• I hold that the custom of Nnewi people which allows wives of deceased husbands to have post humous children for their late husbands is not only repugnant to natural justice, equity and good conscience but contrary to public morality and policy in that it encourages prostitution and promiscuity apart from stigmatizing the children who shall be perpetually insure of their biological fathers by the circumstances of their birth as in this case. Per IGNATIUS IGWE AGUBE, J.C.A

AGBAI V. OKOGBUE (supra)

• “I have no hesitation in coming to the conclusion that any customary law that sanction the breach of the aspect of the rule of law as contained in the fundamental rights provisions guaranteed to a Nigerian in the Constitution is barbarous and should not be enforced by our courts”...In the circumstances of this case the customary law resorted to by the appellants is not only barbarous and repugnant to natural justice, equity and good conscience, but also in violation of sections 24(1) and 31 of Chapter 3 of the 1963 Constitution relevant at the time the cause of action arose and the suit filed” – Per Wali JSC

CONCLUSION

• The determination of this question often involves a lot of exercise of discretion and value judgment by the judge

• The question of the value of this test has been heightened by advocates who contend that the test was an instrument of colonialism used to impose colonial values and way of life on Africans

• However, Nwokedi JSC in Agbai v Okagbue (see next slide) explained the importance of the tests in fine-tuning customary law to meet changed conditions and we agree with him.

AGBAI V OKOGBUE (SUPRA)

• “Customary laws were formulated from time immemorial. As our society advances, they are more removed from its pristine social ecology. They meet situations-Which were inconceivable at the time they took root. The doctrine of repugnancy in my view affords the courts the opportunity for fine tuning customary laws to meet changed social conditions where necessary, more especially as there is no forum for repeating or amending customary laws. I do not intend to be understood as holding that the Courts are there to enact customary laws. When however customary law is confronted by a novel situation, the courts have to consider its applicability under existing social environment”. – Per Nwokedi JSC

CONCLUSION

• The Court should be guided by the words of Ogundare JSC in Okonkwo v Okagbue (supra) that "That a local custom is contrary to public policy and repugnant to natural justice, equity and good conscience necessarily involves a value judgment by the court. But this must objectively relate to contemporary mores, aspirations, expectations and sensitivities of the people of this country and to consensus values in the civilized international community which we share. We must not forget that we are a part of that community and cannot isolate ourselves from its values. Full cognizance ought to be taken of the current social conditions, experiences and perceptions of the people. After all, custom is not static ."

• See the following books for further studies on this topic

• Tobi N. Sources of Nigerian Law, (1996), Lagos, MIJ Professional Publishers Ltd.

• Obilade A.O. The Nigerian Legal system, (Reprint), (2001), Ibadan, Spectrum Books Ltd.

• Park A.E.W. The Sources of Nigerian Law, (1963), Lagos, African University Press.

• Malemi E. The Nigerian Legal Method, (2nd ed.) (2012), Lagos Princeton Publishing Company.