THE

REPUGNANCY DOCTRINE UNDER CUSTOMARY LAW:

Issues and Challenges

Being Paper Presented At The

NATIONAL JUDICIAL INSTITUTE ABUJA
15th April 2021

By
Justice Jibril Idrisu (rtd)
Former President
Customary Court of Appeal, Nasarawa State
PROTOCOL
My Lords, permit me to express my sincere appreciation to the
Administrator, National Judicial Institute, the Hon. Justice R.P.I Bozimo,
OFR, and the Education Committee of the Institute for granting me this
rare honour and privilege to present a paper at this workshop, specially
organized for judges of Sharia/ Area/ Customary Courts on the topic:
'The Repugnancy doctrine under Customary law: Issues and Challenges'

1.0 INTRODUCTION
Customary law or native law and custom is a significant source of
Nigerian law. Its impact or effect on our legal systems is quite
enormous. It is the indigenous law; the law that was handed down
from time immemorial from ancestors and it reflects the norms
and cultures of the people.
Prior to colonization of Nigeria, Customary laws were applicable in
the indigenous native courts under the supervision of the
chiefs/emirs or traditional rulers. The customary law then was
applied in its original form without any restriction until the advent
of the colonial masters.
The concept of repugnancy tests in Nigeria dates back to the
colonial days when the expatriate Judges sat to adjudicate cases
brought before them bordering on native law and customs. They
refused to recognize and enforce Customary laws that are
perceived to offend European standards of morality, values and
justice in general, which they coded variously as ‘natural justice’,
‘equity’ or ‘good conscience’.
Essentially, repugnancy doctrine was used to test our Customary
laws for enforceability. This paper begins with the meaning, the

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 features and the proof of customary law. It discusses the
introduction of repugnancy doctrine into the country's legal
system. Attempt is made to identify reasons for the colonial courts
to subject the native laws and customs to repugnancy tests and
why the present courts still place conditions on the customary laws
before applying them. Finally, issues and challenges will be
considered along with some notable cases in which Nigerian courts
have made pronouncements on the application of Repugnancy
doctrine.

1.1 WHAT IS CUSTOMARY LAW?

There are obvious need to have an overview or basic
understanding of Customary law before we look into the
consideration of the relevance or otherwise of the doctrine of
repugnancy and compatibility tests.
Aristotle (384-327 BC) the ancient Greek philosopher, proclaimed
that “man is the noblest of all animals, but separated from law and
justice, he is the worst”
This true statement, reinstates the indispensability of law in the
society. Consequently communities who desire decorum and
justice have developed customs and laws that become the mirror
of their society.
Customary law has variously been defined by statutes, case laws
as well as by textbook writers:
Section 258[1] (1) of the Evidence Act, Laws of the Federation,
2011 defines custom as;

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“a rule which in particular district has from long usage obtain the
force of law”.
Consistent with the above, Section 2 of the Customary Court of
Appeal law of Nasarawa State, defines customary law as;
“the rule of conduct which govern the legal relationship as
established by custom and usage not forming part of the common
law of England nor formally enacted by the Nasarawa State House
of Assembly but includes any declarations or modification of
customary law but does not include Islamic personal law”.
Also, from the jurisprudence of the courts, Customary law has
been interpreted in OYEWUMI V. OGUNESAN(1990)3NWLR,
(Pt137)182,207 as:
“the organic or living law of the indigenous people of Nigeria which
regulates their lives and transactions…’
Again, in the case of NWAIGWE V. OKERE (2008) ALL FWLR
(Pt 43) 870. The Supreme Court defined customary law thus:
“Customary law generally means relating to the custom or usage
of a given community. Customary law emerge from the tradition,
custom and usage and practice of people in a given community
which by common adoption and acquiescence on their part and by
long and involving habit, it has acquired to some extent, element
of compulsion and force of law”.
Describing the nature of Customary laws, Lord Denning in R. v.
Secretary of State of Commonwealth Affairs (1982) 2 All ER
118, said
“these Customary laws are not written down, they are handed
down by tradition from one generation to another, yet beyond

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doubt are well established and have the force of law within the
community”.
Complementing these definitions given by statutes and case laws,
P.C. Lloyd in his book ‘Yoruba Land Law’, defined Customary law
as “the ancient law which has always been observed being
antiquity”.
If we peruse all these definitions, it will reveal clearly that
emphasis have been on ‘acceptance’, ‘usage’, antiquity, unwritten,
as well as, force of law.
Therefore, customary law exists when certain rules, practices and
norms of a particular community which regulate the lives of the
adherents are accepted as binding upon them. Customs acquire
force of law when they become the undisputed rule by which
certain rights, entitlements and obligation are regulated between
members of the community. It may be correct to say that all
peoples in Nigeria have customs. However, customary law takes
different form from community to community based on cultural
differences. There is therefore no single uniform set of customs
prevailing in the country.
The native legal system consists of countless customs each
developed and applicable to a particular ethnic group. Customary
law has a jurisdiction limited to a particular cultural boundaries and
it is in the possession and right of a restricted ethnic group.
Put simply, customary law is a pure law promulgated at a remote
stage in the life of a community outside human memory. The
observance of a customary law is rooted in the strong belief of
ancestral spirits. Generally any disobedience of customary law is

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 considered a taboo or abomination and may attract punishment by
the ancestral spirit. This is perhaps what Mark Twain had in mind
in his famous quote: ‘Laws are sand, customs are rock. Laws can
be evaded and punishment escaped but and an openly
transgressed custom brings sure punishment.’

1.2 FEATURES OF CUSTOMARY

The question as to when a Custom becomes customary law is no
doubt one of the vexed jurisprudential contentions.
A custom must satisfy the following basic features or
characteristics before attaining the status of a customary law:
a. Acceptability:
Customary law is generally accepted as law amongst the
community who practice it. They obey it voluntarily or habitually
without compulsion. Where a custom is not widely accepted
then it ceases to be law. In OWONIYIN V. OMOTOSHO
(1961) 1 ALL NLR customary was defined as “a mirror of
accepted usage and be in existence at the relevant time’.
It is the obligation of people who practice a particular custom to
translate it into a binding law.
Flexibility:
Customary law adapts to changing circumstances because of its
flexibility. It is dynamic and its rules change from time to time
to reflect the changing social and economic conditions. In
Lewis v. Bankole (1909) 1 NLR it was stated that one of the
striking features of customary law is its flexibility as it shows
unquestionable adaptability to altered circumstance without

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 entirely losing its character. The dynamism of customary law is
illustrated in customary law rules about land ownership where it
is now possible to own land individually, unlike the earlier times
where land belong to the family as a group.
b. Unwritten feature:
Customary law is unwritten. It is neither coded nor contained in
any document like the statute laws. The source of customary
law depends on the recollection of elders. The people
concerned carry it in their minds and pass it on to their
offspring through words of mouth.
c. Lack of uniformity:
Customary law has no uniformity because the customs of
particular people differs from one community or tribe to
another. The diversity of the people of Nigeria also implies the
diversity of their customs.
For example, the customary law system of an ethic group in
one community may differ from the customary law system of
the ethnic group in a neighbouring village even where they
speak the same language. Differences in customs of ethnic
groups can be traced to various factors such as language,
proximity, origin, history, social structure.
d. Superstitious nature of customs:
Customary laws evolves from the customs and traditions of the
people and tend to be superstitions and barbaric in certain
aspects.
e. Certainty:

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 Customary law must be ascertainable. It must be such that the
details are well known to the people at all times.

1.3 PROOF OF CUSTOMARY LAW

A proof is evidence or argument establishing a fact or truth of a
statement. The Nigerian Evidence Act, 2011, provides that proof of
customary law can be by calling evidence. The burden of proving a
custom by evidence i.e. calling witness lies upon the person
alleging its existence. [Section16 (1)(2)]
i. A custom may be judicially noticed if the courts have
acted upon such customs several times in which case, it
needs not be proved before such courts. [section17]
ii. Chiefs or traditional rulers and elders of a community may
be called to testify as to the existence of such customs.
One or two witnesses may suffice to prove a custom.
However evidence of one witness which is cogent and
credible is sufficient to prove the existence of the custom
in question before the court. [section 70]
iii. Literally works, books or manuscripts, if any, written by
renowned authors, who are known to be well vast in the
customs of the particular community could be referred to,
tendered and admitted in evidence. [section 72]
iv. A customary court sitting in a locality where its members
are also from the same locality will not require any body
to prove the existence of the custom. The chairman/
president and court members are presumed to know the
custom.

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 v. A custom cannot be established by a few instance or any
instances of recent dates as custom must be ancient and
the proof must be conclusive.

1.4 REPUGNANCY DOCTRINE

The word ‘repugnant’ derives from the Latin, ‘repugnaire’
meaning-contrary, in opposition, resistant. Blacks’ Law Dictionary,
(7th Ed), define ‘repugnancy’ as ‘inconsistency, irreconcilable or
contradictory to, highly distasteful or offensive, contrary to as in
nature.
The term 'repugnancy clause' has not been defined in any Nigerian
statute, and also the courts have not put in plain words, its
meaning. The doctrine of repugnancy owes its origin to the
medieval period and evolution of English Equity. It was introduced
into Nigeria by the end of the 19th century by Ordinance 3 of 1863
which received English Law into our legal system. The doctrine is
found in both the early and modem statutes dealing with the
administration of justice in Nigeria. Section 19 of the Supreme
Court Ordinance 1914 is one of the earliest provisions on the
repugnancy doctrine and states as follows:
‘Nothing in this Proclamation shall deprive the Supreme Court of
the right to observe and enforce the observance, or shall deprive
any person of the benefit of any law or custom existing in the
Protectorate, such law or custom not being repugnant to natural
justice, equity and good conscience’
However, Subsequent local legislations over the years have since
continued to retain this legislation. In essence, every High Court
in each of the 36 jurisdictions in the country and the FCT are

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enjoined to observe and enforce the customary law of the people
in its area of jurisdiction provided they scale through the
repugnancy test.
Similarly, part V of the Customary laws 1984 (Imo State) provides
as follows:
Section 16 (1) (a) “subject to S. 247 and 249 of the Constitution
and provisions of this law a Customary court or a Customary Court
of Appeal shall administer.
(a) the customary law prevailing in the area of jurisdiction…. In so
far as it is not repugnant to natural justice, equity and good
conscience.’
The provisions of section 16 of the Evidence Act, Laws of the
Federation of Nigeria 2011 states clearly that:
“Provided that in case of any custom relied upon in any judicial
proceeding, it shall not be enforced as law if it is contrary to public
policy and is not in accordance with natural justice, equity and
good conscience.”
Repugnancy is the process of determining the abolition or rejection
of perceived unwholesome or inhuman customs on the ground
that the custom is not in conformity with civilization.
With the colonization of Nigeria in 1900, the British overlords, did
not totally abolish the customs and practices of the people, but
introduced into the country some standards or doctrine upon
which all customs and traditions of the natives will be assessed
before they are applied as law. The colonial masters were
prepared to tolerate customary law, but would not enforce rules
that might offend European standards of morality and justice.

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Based on this foreign standard, substantial rules of customary laws
were found to be offensive, inconsistent with the English sense of
justice and therefore declared invalid. Thus any rule of native law
and custom which comes in conflict with the common law or
statutes law must give way. In ESHUGBAYI ELEKO v. OFFICER
ADMINISTRATING GOVT OF NIGERIA (1931) AC 662; Lord
Atkins explains that a barbarous custom must be rejected on the
ground of being repugnant to natural justice, equity and good
conscience.
Like the repugnancy clause, the phrase 'natural justice', 'equity
and good conscience', equally defies accurate definitions too.
However, the phrase 'natural justice', 'equity and good conscience'
will refer to what is fair, what is just, what is equitable, in short,
what Equity is in the old Chancery courts.
In consequence, not all customs shall be recognized as customary
law unless they scale through the validity tests. The test subjects
the recognition and enforcement of customary laws to a duality
tests – the repugnancy and incompatibility tests. Thus through
incompatibility test, customary norms would be rendered
unenforceable should it conflict with State laws.
In the course of these tests, the court has established control over
customary processes that is, where the courts will declare whether
or not a custom is inconsistent or contradictory to natural justice
or simply barbaric depending on the views of the presiding judge.
The courts will observe and enforce any customary law under the
following three conditions:

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 (i) The customary law must not be repugnant to
natural justice equity and good conscience.
(ii) That such customary law must not be incompatible
either directly or by implication with any law for the
time being in force or
(iii) . Contrary to public policy.
The role of the courts have been restricted to either accepting a
custom or rejecting its enforceability, as no customary law must be
repugnant to natural justice if it is to be enforced. The
consequence here is that, the onus of determining what becomes
customary law shifts from the people who are governed by the
customs to the Courts.

1.5 PRONOUNCEMENTS BY COURTS ON REPUGNANCY CLAUSE

Repugnancy doctrine constitutes the mechanism by which Nigerian
courts abrogate any rule of customary law that conflicts with
natural sense of justice. The doctrine had made some indelible
marks on both the substantive and procedural areas of Nigerian
law. Under the substantive law, issues of paternity clearly stood
out. In EDET v. ESSIEN (1935)12 NLR 4, the appellant paid
the dowry in respect of a woman when she was a child. Later the
respondent paid dowry in respect of the same woman and took
her as wife. The appellant not the biological father, claimed
custody of the children on the ground that under customary law,
he was the husband of the woman until the dowry paid, was
refunded. The court held that any customary law which has the
effect of giving the paternity of a child to a person other than his
natural father is barbaric and repugnant. Similarly in MARIYAMA

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 v. SADIKU EJO (1961)NRNLR 81, The court rejected the rules
of Ebira customary law that any child born within ten months of a
divorce belongs to the former husband who may not necessarily
be the biological father. Rejecting the rules, the court held that
the native law and custom was repugnant. (See also MERIBA v.
EGWU [1976] 1 ALLNLR 266, the traditional practice in Igbo
land that allowed marriage between two women to cater for well-
to-do female members of the society who were unable to conceive
was declared repugnant by the Supreme Court.

1.6 IMPACT OF REPUGNANCY CLAUSE ON PROCEDURAL LAW

Repugnancy doctrine played an important role in watering down
some of the harsh rules of procedure under customary law. In
adjudication, courts are required to abide by the two fundamental
principles of natural justice, namely, nemo judex in causa sua (no
one shall be a judge in his own cause); and audi alteram partem
(no one shall be condemned unheard). It was not strange then
that under customary law system to have the accuser participating
in the trial of the person accused, as native courts were
constituted by traditional chiefs and elders of the community.
Furthermore, modern concepts of presumption of innocence,
burden of proof and proof beyond reasonable doubt are not
grounded in customary law administration of justice. Thus most
trials before native courts were ultimately found violating most of
these modern requirements of a fair trial. In MODIBO v.
ADAMAWA N.A. (1956) NRNLN 101, the court allowed the
appellant who was sentenced to terms of imprisonment by a court
presided over by the Lamido of Adamawa (a traditional chief), for

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an offence of writing an abusive letter and personal attack on the
Lamido, on the principles that no man can be a judge in his own
case. Similarly in JALO GURI v. HADEJIA N.A. (1959)4FSC
44 @46, a procedural rule, well rooted under customary law,
which prevented an accused person in a case of highway robbery,
the right to cross examine witnesses or defend himself was struck
down and declared repugnant to natural justice, equity and good
conscience.
Other area of affirmative impact of repugnancy doctrine is on the
abolition of jungle justice or trial by ordeal. Whenever there is
doubt during trial, customary law allows the use of trial by ordeal
to resolve issues or ascertain the truth. The use of ordeal had its
genesis in the belief in the supernatural form to secure confession.
Under the system, parties are subjected to some form of ordeal
and whoever survives was regarded as innocent. An example is
where the parties are made to swear by sacred objects. In a more
serious cases, appeals may be made to the gods to cause calamity
onto the guilty party. However, these customary rules or practices
have been eradicated by repugnancy doctrine. The repugnancy
doctrine also function in the field of punishment where inhumane
punishment or brutal use of force is proscribed. The prohibition
against subjecting a person to any punishment of inhumane
nature has received Constitutional approval under section 34(1)(a)
of the 1999 Constitution of Nigeria.
Sections 36 and 42 of the 1999 Constitution and several
international covenants and protocols like the Covenant on the
Eradication of Discrimination Against Women are legislations which

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customary law must conform before it can be enforced. No doubt,
this is what prompted the decision of the court in MOJEKWU V.
MOJEKWU (1997) 7NWLR (Pt 512) 233 where a customary
law discriminatory against female children was held to be
incompatible with Section 42 of the 1999 Constitution and not
enforceable. In that case, the Court of Appeal held that Oli-ekpe
custom of Nnewi is repugnant to natural justice, equity and good
conscience. By the Oli-ekpe custom, female children were
excluded from inheriting the property of their father, such that if a
man dies leaving only a female child, he will be inherited by his
brother, if he leaves a male child who inherited him, but later dies,
he will also be inherited by his brother. If the brother who
inherited dies leaving sons, his sons will inherit the property and
not the daughters of the deceased. Similarly, the patriarchal or
primogeniture customary system which give credence to male
inheritance is equally unconstitutional or repugnant.
One of the celebrated Nigerian cases that must be cited when
discussing customs which are repugnant to written law, regarding
discrimination of women from partaking in the sharing of their
fathers estate is the case of Ukeje, one of the recent Supreme
Court cases on the inheritance rights of women. The facts of
UKEJE V UKEJE (2014) 11 NWLR (PT.1418) 384 are as
follows: Lazarus Ogbonnaga Ukeje, an indigene of Imo State, died
intestate with real property in Lagos State. The appellants are his
wife Mrs Ukeje and her son, both of whom obtained Letters of
Administration over the deceased Estate. The letter of
administration excluded his daughter (Plaintiff/Respondent) from

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 partaking in the sharing of her father's estate. Conversely, the
respondent filed an action in the Lagos State High Court where
she claimed to be a daughter of the deceased and by virtue of that
fact, had a right to partake in the sharing of her late father’s
estate. The trial Judge nullified the letter of administration and
ordered that a new letters of administration be created with the
daughter. The defendants/appellants lodged an appeal which the
Court of Appeal Lagos (Division) dismissed for lacking merit.
Again, not satisfied with the decision, they appealed to the
Supreme Court.
At the end of the matter, the Supreme Court unanimously
dismissed the appeal on the grounds that no matter the
circumstances of the birth of a female child, she is entitled to an
inheritance from her late father’s estate. Consequently, the Igbo
customary law which disentitles a female child from participating in
her deceased father’s estate is in breach of section 42(1) and (2)
of the Constitution of the Federal Republic of Nigeria, 1999, a
fundamental right provision guaranteed to every Nigerian. The
said discriminatory customary law is void as it conflicts with
section 42(1) and (2) of the Constitution of Nigeria.

1.7 ISSUES AND CHALLENGES

Repugnancy doctrine has indisputably contributed to the
development of Nigeria customary law. It has refined and modified
obnoxious rules of Customary law in terms of modern day realities.
All the same, Customary law scholars have warned that this
approach may be dangerous in the sense that it could change
customary law rules to what they never were. This is so because,

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the doctrine has not received favour of the natives and has been
criticized for supplanting indigenous law in its land. The
repugnancy doctrine is seen by some natives as an unwanted
reversal of a people's culture. There is need to stress here that,
notwithstanding a declaration of custom by court to be repugnant,
the people involved may still continue to observe such customs
unabated because it is the assent of the community whose
conduct it is supposed to regulate that gives a custom its validity.
A Customary law is validated by the assent of the people and not
by courts, and the tests contained in different statutes by which
courts are permitted to intervene in the regime of Customary law
are tests of enforceability and not tests of validity.
As a result, it may be correct to say that the term “validity test” is
misleading when used in relation to the power of courts to
determine the enforceability of native law and custom.
Evidently, some question have often arisen as to the standard
which the courts employ to determine the rules of repugnancy.
How does the court reach the conclusion that a customary rule is
repugnant? What are the principles used by a judge in reaching
that conclusion? All these are issues that are still not conclusive. It
is believed however that, repugnancy tests is measured against
universal morality, canon of decency and humanity considered
appropriate to the situation at hand and noting that the discretion
of the courts to identify repugnant customary rules is not fettered.
Most experience have shown that judges often resort to
repugnancy in the sense of disgust, distaste, repellence or
dishonour when they have to adjudicate on distasteful details of

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 criminal cases in which custom have been pleaded. In as much as
it is not being advocated for the return of the obnoxious and
barbarous customary rules into the Nigerian legal systems, it is
argued that the retention of the colonial clause of repugnancy
doctrine in our Statute books has outlived its purpose. It sends a
wrong signal that the country still retains obnoxious customary
laws.

1.8 CONCLUSION
The operation of the repugnancy doctrine in determining the
application of Customary law should be seen as an instrument
used by the British to bring our Customary law within the
acceptable objective standard of moral law recognized by all
nations. Judges must continue to adapt which practices pleaded as
Customary law, pass or fail the repugnancy tests and this is not
simply a test of legal compatibility. It is among other things, a test
of what kind of practices educated Nigerian can tolerate in our
modern day Nigeria. It is rather an exercise in imposing limits on
the behavior of the grassroots or rural people. It is believed that
judges will draw a distinction between worthy and unworthy
custom or which custom is repugnant to general principles of
humanity.

Apparently, we can say that the doctrine has brought positive

effects on the development of our Customary laws by the
elimination of gross injustice inherent in its strict application. A
good Customary law must conform to the universal concept of

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what is good, just and fair which must be consistent with the
Constitution, our supreme norm.

THANK YOU

Justice Jibril Idrisu (rtd)

Former President CCA Nasarawa State

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