A CRITICAL APPRAISAL OF THE REPUGNANCY TEST UNDER THE EVIDENCE ACT AND ITS CONTINUED APPLICATION AGAINST CUSTOMARY LAW RULES IN NIGERIA

Abstract

This article critically looks at how relevant the continual retention of the repugnancy doctrine is in Nigerian customary law, questioning whether it continues to serve as a necessary protection for justice or is an outdated remnant of colonial rule. The doctrine originated from the introduction of English law during the colonial period, giving courts the power to declare customary law rules as invalid if they were seen as “repugnant to natural justice, equity and good conscience.” It was first introduced through colonial laws like the Native Courts Proclamation of 1900, and later included in Section 18(3) of the Evidence Act 2011, along with other related tests such as incompatibility and public policy. The main issue explored in this article is the conflict between maintaining traditional legal systems and stopping discriminatory or unfair customary practices. Although the repugnancy test was meant to ensure fairness, it has frequently been criticized for applying European standards to African customs, which can be seen as a form of cultural dominance. On the other hand, supporters of the doctrine claim it is essential for bringing customary law in line with modern ideas of justice and human rights. Using a doctrinal research approach, this article looks at legal texts, court rulings, and constitutional structures that govern the use of the repugnancy doctrine in Nigeria. It examines key court cases such as Dawodu v Danmole, Edet v Essien, Okonkwo v Okagbue, Mojekwu v Mojekwu, and Ukeje v Ukeje, showing how inconsistent standards have been applied by courts and which categories of customary rules have been declared invalid, especially those that deal with issues like gender discrimination, inheritance rights, and social hierarchy. The article concludes that the 1999 Constitution, particularly its provisions on the dignity of the human person and freedom from discrimination, has greatly influenced how the repugnancy doctrine is applied, effectively embedding its principles into the constitutional framework. This development raises concerns about whether the legal formulation of the repugnancy doctrine is still necessary or has become outdated in light of constitutional supremacy. In addressing the identified tensions, the article proposes a reformed, Afrocentric, and rights-based approach to the repugnancy doctrine one that acknowledges the dynamic nature and legitimacy of customary law while ensuring alignment with fundamental human rights standards. It argues that complete abolition could result in a regulatory vacuum, while blind acceptance risks reinforcing colonial biases. The article concludes that the repugnancy doctrine should not be entirely discarded or retained as it currently stands. Rather, it should be adapted through legislative reform and judicial reinterpretation to reflect Nigeria’s socio-cultural realities and constitutional values. The article recommends amending Section 18(3) of the Evidence Act to include clearer, rights-based criteria; developing a consistent and coherent judicial approach; and promoting an indigenous legal framework that balances cultural authenticity with universal principles of justice. Ultimately, the article asserts that justice in Nigeria must be both culturally rooted and normatively grounded.