Repugnancy clause and its impact on customary law: Comparing the South African and Nigerian positions — Some lessons for Nigeria

Abstract

The repugnancy doctrine was introduced into Nigeria in the 19th century through the received English laws. This doctrine prescribes that the courts shall not enforce any customary law rule if it is contrary to public policy or repugnant to natural justice, equity and good conscience. The doctrine is generally criticised for its use of foreign standards to assess the validity of the customary law rules. This article, however, contends that repugnancy doctrine had played a positive role in the development of customary law in Nigeria by removing its harsh aspects. Most African countries repealed the repugnancy provisos when they obtained independence but Nigeria still retains it. The article compares the positions in South Africa and Nigeria. In the South African context, this article found that repugnancy proviso had outlived its usefulness and courts now apply customary law subject to the Constitution and any legislation that specifically deals with customary law. This position, the article commends for Nigeria.