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DOCTRINE OF REPUGNANCY TO FINE TUNE CUSTOMARY LAW

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Dictum

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 repealing 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.

– Nwokedi JSC. Agbai v. Okogbue (1991) – SC 104/1989

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IN CUSTOMARY LAW, PAYMENT OF PURCHASE PRICE PASSES TITLE

It is settled law that it is for a party to a contract to take all necessary precautions in order to avoid a bad bargain. See Owo v. Kasumu (1932) 11 NLR 116; the maxim is caveat emptor (let the buyer beware). It is the vendor’s duty, however, to disclose defects in his title. The law is that in a transaction of sale of land under customary law, once there is payment of the purchase price of the land to the purchaser in the presence of witnesses, title in the land passes to the purchaser. See Ogunbambi v. Abowaba 13 WACA. 222; Cole v. Folami (1956) SCNLR 180; (1956)1 FSC 66 and Ashaye v. Akerele (1968) NMLR. 190. In the instant case, no such customary sale did indeed take place and the trial court rightly so found. This is because the respondent did not pay the full price for the 4 plots of land he purported to purchase from the appellants for 950pounds with a balance of 250pounds left unpaid. The attributes of a void sale being therefore absent from the purported sale to the respondent, title thereto not having passed, the court below seriously erred when it held that under customary law the legal representatives of Jemi-Alade transferred the ownership of the land in dispute on the part-payment of the purchase price thereof.

— Onu, JSC. Odusoga v Ricketts (1997) – SC.57/1990

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PATERNITY ACKNOWLEDGED CHILD WILL SHARE IN ESTATE

Alake v. Pratt (1955) 15 W.A.C.A. 20, to the effect that if paternity of children is acknowledged by a man during his lifetime they are to be regarded as legitimate and entitled to share in his estate with his children born of a marriage contracted under the Marriage Ordinance.

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YORUBA CUSTOMARY LAW REQUIRES CONSENT OF FAMILY TO SELL LAND

It is a settled position of law that, by Yoruba Customary Law, a transaction for the sale and conveyance of family land requires the consent of all members of the family or substantial majority of them. See AFOLABI COKER VS MARIAMO OGUNTOLA & ORS (1985) 2 NWLR (Pt. 87); ELIAS VS OLAYEMI DISU & 3 ORS (1962) 1 ALL NLR 214; FOKO VS FOKO (1965) NMLR 3, EBOSIE VS EBOSIE (1976) 6 UILR 217.

— S.D. Bage, JSC. Onyekwuluje v Animashaun (2019) – SC.72/2006

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NATIVE LAW IS MIRROR OF USAGE

Native law and custom is, I think, a mirror of accepted usage.

— Bairamian, F.J. Owonyin v. Omotosho (1961) – F.S.C.249/1960

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A STATUTE WILL NOT APPLY TO CUSTOMARY LAW

Distinguishing these cases from the instant case, the Court of Appeal correctly held that the marriage between P.W.1 and the appellant was shown to be under native law and custom. In further distinguishing the cases, the Court of Appeal referred to the facts. In Rimmer v. Rimmer (supra) both husband and wife were wage earners. They bought a house in the name of the husband as the matrimonial home. The wife provided the deposit for the house. The rest of the purchase money was borrowed on the security of a mortgage from a building society in the name of the husband. Part of the principal of the mortgage money was repaid out of the housekeeping money provided by the husband. The remainder was repaid by the wife out of her money at a time her husband was on war service. The wife provided all the furniture for the home out of her own resources. When subsequently, the husband left the wife and the house was sold, the proceeds was shared equally between them on a summons under section 17 of the Married Women’s Property Act 1881 (U.K.). This was because it was not possible fairly to assess the separate beneficial interests of the husband and wife by reference to their contributions to the purchase of the house. In the instant case, the Married Womens’ Property Act 1881 (U.K.) is inapplicable since the marriage is governed by customary law.

– Karibe-Whyte JSC. Amadi v. Nwosu (1992)

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NATIVE LAW AND CUSTOM MUST BE PLEADED

The burden of proof of customary law is on the party asserting its existence. See Usibiafo v. Usibiafo (2005) 3 NWLR (Pt.913) 665 at 684; Sokwo v. Kpongbo (supra). It has been established through plethora of cases that it is extremely important that native law and custom must be pleaded and strictly proved by credible evidence. This case is not predicated on proof by the mode of judicial notice, but by proof of evidence.

— T. Akomolafe-Wilson, JCA. Alabi v Audu (2017) – CA/A/494/2014

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