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 19 th 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. Introduction The state of the literature on the development of our customary law and the doctrine of repugnancy is that: (i) The British colonized us from 1863-1960. (ii) When the British arrived, they met about 350 different tribal or independent kingdoms, some of which were under the influence of the Islamic civilization. (iii) To facilitate the administration of the colony of Lagos in 1863, the British administered the common law of