UNIT 2 INTRODUCTION OF THE DOCTRINES OF EQUITY INTO NIGERIA
CONTENTS
1.0 Introduction
2.0 Objectives
3.0 Main content
3.1 Ordinances
3.2 Customary law and equity
3.2.1 Repugnancy doctrine and customary law
4.0 Conclusion
5.0 Summary
6.0 Tutor-Marked Assignments
7.0 References / Further Reading
1.0 INTRODUCTION
In the previous unit, we traced the origin of equity, explained the notions of conscience and dif- ferentiated equity from common law in the narrow sense. In this unit, we will consider how the doctrines of equity were introduced into Nigeria.
The modern technical rules and doctrines of equity which originated from the early English Chancery were formally received into the Nigerian legal system through various statutory enact- ments. These technical rules and doctrines of equity are the outcome of many ancient and modern English judicial decisions, established and ascertainable in the same manner as the common law rules. It seems to follow that any technical rule of equity in force in Nigeria must have its founda- tion or its ‘ancestry’ in an English case law. This is the focus of this unit.
2.0 OBJECTIVES
By the end of this unit you should be able to:
(i) Explain how the doctrines of equity were introduced into Nigeria; and
(ii) Explain the repugnancy doctrine.
3.0 MAIN CONTENT
3.1 Ordinances
English law and doctrines of Equity were introduced into Nigeria by means of local legislation. The first of such legislations was Ordinance No. 3 of 1863.
Ordinance No. 3 of 1863
This enactment broadly introduced English law into the territory of Lagos without any further analysis. In the absence of any information or record as to the interpretation of the laws so in- troduced, it is reasonable to assume that the introduced laws had been those administered in the practice of the English courts. As such, any reference to the laws of England will, by necessary implication be interpreted to include not only the rules of common law but also the rules of equity as developed respectively in the English common law courts and the English Chancery Courts.
Section 1 of this Ordinance No. 3 of 1863 introduced all laws and statutes, which were in force in England on the 1st day of January, 1863, and made them part of the laws of the Colony of Lagos. The only limitation was that such laws and statutes must not be inconsistent with any Ordinance in force in the Colony; and that they must be applied in the administration of justice so far as local circumstances would permit.
Ordinance No. 4 of 1876
Section 14 of this Ordinance introduced more clearly, the English common law, the doctrines of equity and statutes of general application which were in force in England on the 24th day of July, 1874, to be in force within the jurisdiction of the courts in the Colony of Lagos. Because of the inclusion of the phrase, ‘doctrines of equity,’ in this Ordinance, it is tempting to argue that this Ordinance is the forerunner of the introduction into Nigeria of the doctrines of equity.
Therefore, it can be reasonably asserted that the technical principles of equity as developed by successive Chancellors in England were incorporated into the laws of the Colony of Lagos for the first time only in 1876. Section 17 of this Ordinance made the application of Imperial Laws subject to local circumstances and to any existing or future Ordinance of the colonial legisla- ture.
Section 18 of the same Ordinance also enjoined the British established courts in the Colony to observe the observance of the native laws and customs of the people of the Colony; such laws and customs not being ‘repugnant to natural justice, equity and good conscience.’ This doctrine will be considered later on at the end of this unit.
Ordinance No. 17 of 1906
Consequent upon the merger of the Colony of Lagos with the Protectorate of Southern Nigeria on the 1st of January, 1900, this Ordinance No. 17 of 1906 was passed in order to make appli- cable to the new Protectorate the provisions of Ordinance No. 4 of 1876. Similar steps had ear- lier been taken in respect of the Protectorate of Northern Nigeria by means of Proclamations. See section 4 of the Protectorate Courts Proclamation, No. 4 of 1900.
Ordinance No. 3 of 1908
This Ordinance repealed all existing enactments and re-enacted their provisions with minor al- terations. The Ordinance remained in force until it was finally superseded by the Supreme Court Ordinance, 1914, which became applicable to the whole of Nigeria on the amalgamation of Northern and Southern Nigeria on the 1st day of January, 1914.
The Supreme Court Ordinance 1914
One of the objectives of the amalgamation in 1914 was the unification of the legal systems of the two administrations of Northern and Southern Nigeria. This objective was achieved by the promulgation of the Supreme Court Ordinance which replaced all the laws pre-existing in the amalgamated units. The Ordinance introduced into the country, subject to the usual reservation of their being applied subject to existing local laws and in so far as local circumstances would permit, the rules of the English common law, the doctrines of equity and statutes of general ap- plication which were in force in England on the 1st day of January, 1900.
In this way, the rules of the English common law, the principles of English Equity and Statutes of general application which were in force in England on the 1st day of January, 1900 were in- troduced into the whole of Nigeria.
In 1952, the country adopted a quasi-federal Constitution whereby the country was divided into three regions – Eastern, Northern and Western Regions, with three legislative houses and a cen- tral Legislature in Lagos. This was followed up in 1954 with the regionalisation of the judiciary to accord with the new constitutional arrangements which came into operation since 1952.
In pursuance of this regionalisation of the judiciary, a Federal Supreme Court, replacing the West African Court of Appeal was set up by the Federal Constitution of 1954. A High Court and Magistrates’ Courts were established in each of the three regions of Eastern, Northern and Western Regions. The Federal Territory of Lagos (separated from the Western Region) was also provided with a High Court and Magistrates’ Courts and thus treated as though it were a region.
Provisions were also made in the Supreme Court Act, the High Court Laws and the Magis- trates’ Courts Laws of the regions and Lagos incorporating the rules of the English common law and the doctrines of equity among other things, into the respective laws to be administered not only in the Federal Supreme Court, but also in the regional High Courts and the Magis- trates’ Court. (In the Northern States, however, when the Magistrates sit in their civil jurisdic- tion they are designated as ‘District Judges’. See sections 3-7 of the District Courts’ Law (N.R. No. 15 of 1960). Note that the word ‘Law’ is the designation for a regional legislation, while the word ‘Ordinance’ was still retained for a federal legislation. Since independence, however, all Ordinances enacted by the federal legislature became known as ‘Acts’.
Also, when the Mid-Western Region was carved out of the former Western Region and consti- tuted into a separate region in 1963 by the Federal Parliament, Section 2 of the Mid-Western Region (Transitional Provisions) Act, 1963, expressly made all existing law which were in force in the Western Region immediately before the creation of the new region to be the law in force in the new region until changed by the new Midwestern authority. The effect of this is the direct absorption of the provisions of section 13 of the High Court Law, 1955 (W.R) and those of section 13(1) of the Magistrates’ Courts Law, 1955 (W. R.) into the law (that is to say the rules of common law, the doctrines of equity and the statutes of general application which were
in force in England on the 1st day of January, 1900) to be administered in the new Mid-Western
Region High Court and the Magistrates’ Courts.
Nigeria divided into 12 states
With effect from the 27th of May, 1967, the country was divided into twelve separate autono- mous States by the States (Creation and Transitional Provisions) Decree No. 14. Three of these new States, the East-Central, the South-Eastern and the Rivers States, were carved out of the former Eastern Nigeria. While six others, the North-Western, the North-Central, Kano, the North-Eastern, the Benue-Plateau and Kwara States were carved out of the former Northern Nigeria. The former three administrative divisions of Badagry, Epe and Ikeja in the former Western Nigeria were also carved out of the former Western Nigeria and merged with the Fed- eral Territory of Lagos to form the new Lagos State. The other two were the Western and the Mid-Western States.
Section 15 of the Decree No. 14 provides that “all existing law in the region out of which a state under this Decree is created shall have effect, subject to the modifications necessary to bring it into conformity with the provisions of this section”. Section 2(1) of the same Decree as amended by Section 2 of the Constitution (Miscellaneous Provisions) Decree, 1967, also pro- vides as follows:
“(1) Without prejudice to the provisions of this Decree relating to the existing law, every local authority, court and other public body which immediately before the commencement of the Decree exercised its functions within a state as herein constituted shall continue to exercise those functions in the State.”
The combined effect of these provisions in relation to the law to be administered within the ju- risdiction of the courts in the new states is two-fold: (i) In relation to the law to be administered within the jurisdiction of the High Courts and the Magistrates’ Courts in the Western and Mid- western States, it is the law as contained in the High Court Laws and the Magistrates’ Courts Law respectively in those two States prior to the creation of new States. (ii) In relation to the laws to be administered within the jurisdiction of the High Court and the Magistrates’ Courts in each of the three Eastern and each of the six Northern States, it is the law respectively being administered within the jurisdiction of the High Courts and the Magistrates’ Courts in the for- mer Eastern and former Northern Nigeria.
The position of the High Court and the Magistrates’ Courts in Lagos State is somewhat pecu- liar. In the case of the nine new states created from the former Eastern and Northern Nigeria, each of the new states was an off-shoot of an existing region and carries with it to the new state, the laws being administered within the jurisdiction of the High Court and the Magistrates’ Courts in its former region of origin, to the High Court and the Magistrates’ Courts of the new State.
But in the case of Lagos State, Lagos was already a federal territory being administered by the Federal Government and already had its own High Court and Magistrates’ Courts before the creation of states. The direct effect of this is that the judicial divisions of the High Court and the Magistrates’ Courts functioning in the three administrative divisions of Badagry, Epe and Ikeja, which were carved out of the former Western Nigeria and merged with the federal terri- tory of Lagos to form Lagos State, carried the law being administered within the jurisdiction of their courts to their new Lagos State. The High Court of Lagos Act and the Magistrates’ Courts Act now applied throughout the State. See section 2 of the Lagos State (Applicable Laws) Edict 1968 (No. 2 of 1968).
The country was further divided into 19 states by the States (Creation and Transitional Provi- sions) Decree, 1976 and later into 21, 30 and now 36 states. Thus, we now have in Nigeria as against the former five jurisdictions which exercised judicial functions, 37 (including Abuja) separate jurisdictions performing the same functions.
SELF ASSESSMENT EXERCISE 1
How were the doctrines of Equity introduced into Nigeria?
3.2 Local Legislation in Nigeria dealing with Conflicts between customary law and equity
Despite the introduction of the English law into Nigeria, the native laws and customs of the people were not abolished. Rather, the Ordinances introducing such English law into Nigeria expressly made provisions to the effect that these British established courts in Nigeria should observe and enforce the observance of the people’s native laws and customs as contained in the provisions of section 18 of Ordinance No. 4 of 1876. Subsequent local legislations since then have continued to retain those provisions.
Now, every High Court in the country is enjoined to observe and enforce the observance of the native laws and customs of the people in the area of its jurisdiction. There are, however, two pre-requisites to be fulfilled before the court can observe and enforce the observance of any na- tive law and custom.
- The native law and custom must not be repugnant to natural justice, equity and good con- science.
- Such native law and custom must not be incompatible either directly or by implication with any law for the time being in force. For a detailed study of the second pre-requisite, see Park
AEW: The Sources of Nigerian Law (1963) pp. 77-80.
The first pre-requisite is our focus here and will now be examined in detail.
3.2.1 Repugnancy doctrine and customary law
Origin
The origin of the doctrine appears obscure. It has been suggested that the origin of the doctrine has little connection with English Law. Nor would it be correct to say that it is of Roman ori- gin. It has been further suggested that it did not originate from either Aristotle or Cicero. Rather, its origin has been traced to the Roman-canonical law, which had been prevalent in most of the medieval European States. See Derrett, Justice, Equity and Good Conscience (Changing Law in Developing Countries), edited by J. N. D. Anderson, p. 114.
However, the idea of the repugnancy doctrine was known to the early common law judges, al- though they were primarily concerned with adjudicating in accordance with the common law and statutes. In many cases, they did not modify and supplement common law and statutes by the exercise of judicial discretion or judicial equity (equity in the sense of what is fair and just in the circumstances).
The early Chancery Court introduced equity and developed the technical rules of equity. How- ever, the exercise of the early Chancery Jurisdiction was premised on equity, natural justice and good conscience. Consequently, the British introduced the doctrine to their dependent territo- ries and particularly those territories where the English common law, doctrines of equity had to be administered side by side with local laws and customs. In this way, the ‘repugnancy doc- trine’ became part of our system through various local enactments.
The doctrine is of much importance in the ascertainment and application of our customary law. Our courts are under a duty to enforce customary law so far as it is not repugnant to natural jus- tice, equity and good conscience. In some cases, courts are empowered to apply rules of natural justice, equity and good conscience where the common law, statutes, doctrines of equity and local laws are inapplicable. See for example, section 34(4) High Court Law, No. 8 of 1955 (N. R.)
It has been argued that the phrase ‘natural justice, equity and good conscience’ is capable of being interpreted in two ways. (See Daniels, The Common Law in West Africa, p.267; Park, A.E.W., (1963) The Sources of Nigerian Law, p. 69.)The first possible approach is to view the phrase in totality as having only one meaning. The second possible approach is to split the phrase into three and consider each part separately. (See Speed Ag. C.J. in Lewis v. Bankole (1908) 1 N.L.R. 81.) However, attempt to examine the impossibility implicit in the second ap- proach seems to be a fruitless academic exercise.
From all indications, it is clear that the phrase can only mean one thing, in that there is only one common idea, which is expressed in three different phrases. The three phrases had sometimes been used separately but they all originated from a common idea and they have all been used to achieve the same result – social justice in the administration of law.
The practical application of the doctrine in our system has not evinced any generally agreed test. It is therefore futile to examine judicial decisions in which the operation of the doctrine has been considered. One of the most authoritative pronouncements on the application of the doctrine does not seem to have offered any satisfactory solution. See Eshugbayi Eleko v. Gov- ernment of Nigeria (1931) A. C. 662 at 673. It does not go beyond stating that ‘the court cannot itself transform a barbarous custom into a milder one.’ If it still stands in its barbarous charac- ter, it must be rejected as repugnant to ‘natural justice, equity and good conscience.’
However, the test for the application of the doctrine cannot mean a reference to foreign law; for
‘it is the assent of the native community that gives a custom its validity, and therefore, barba- rous or mild, it must be shown to be recognised by the native community whose conduct it is supposed to regulate.’ See Eshugbayi Eleko v. Government of Nigeria (supra).
Perhaps an agreeable test in the application of the doctrine may be found if the purpose, which the doctrine is meant to serve, is considered. The introduction of the doctrine into our system is to remind the judges of their obvious duty, which is to accept such customary law as will pro- mote, without being inconsistent with the economic, political and social developments of the community within which the customary law is to operate.
These factors must necessarily be the condition precedent to the ascertainment and application of any alleged rules of customary law. This brings us to a consideration of Park’s view that:
‘there is no provision in the enactments which authorises the courts to look beyond the rule to the results of its application in specific situations. (See The sources of Nigerian law, p. 73.)
This is suggestive of a mechanistic approach to the ascertainment and application of our cus- tomary law, particularly where as in many cases, it is almost impossible to determine whether a rule of customary law is repugnant to natural justice, equity and good conscience without as- sessing the result of its operation within the community.
The basic idea behind the introduction of the ‘repugnancy doctrine’ into our system is that the court, in the process of ascertaining and applying an alleged rule of customary law, should rec- ognise and apply equity in its broad sense. That is, giving humane and liberal interpretation to any alleged rule of customary law. It is through the recognition and application of such broad principles of equity that English judges have been able to develop the common law to meet the various needs of successive generations of English people.
Thus, in Emmens v. Pottle (1885) 16 Q.B.D. 354 at pp. 357, 358 Lord Esher said: ‘In my opin- ion, any proposition the result of which would be to show that the common law of England is wholly unreasonable and unjust, cannot be part of the common law of England.’ This proposi- tion was cited with approval in the celebrated decision in Donoghue v. Stevenson (1931) A.C.562 at pp.608, 609. A decision that revolutionised the English law of negligence.
Thus, an alleged rule of common law cannot be part of the common law if the result of its ap- plication is wholly unreasonable and unjust. Therefore, it seems to follow that the result of the application of an alleged rule of customary law would first have to be examined; and if such an examination of the result reveals unreasonableness and injustice, then the alleged rule is no part of the common law.
4.0 CONCLUSION
In conclusion, section 32 subsections (1) to (3) of the Interpretation Act (cap. 123 Laws of the Federation of Nigeria, 2004) provides that:
(1) Subject to the provisions of this section and except in so far as other provision is made by any Federal Law, the common law of England and the doctrines of equity, to- gether with the statutes of general application that were in force in England on the 1st day of January, 1900, shall, in so far as they relate to any matter within the legislative competence of the Federal legislature, be in force in Nigeria.
(2) Such Imperial laws shall be in force so far only as the limits of the local jurisdiction and local circumstances shall permit and subject to any Federal law.
(3) For the purpose of facilitating the application of the said Imperial laws they shall be read with such formal verbal alterations not affecting the substance as to names, localities, courts, officers, persons, moneys, penalties and otherwise as may be necessary to render the same applicable to the circumstances.
Subject to local circumstances and to any local statute, the entire English Common Law and Equity forms part of Nigerian Law. There is, however, a controversy as to whether the limita- tion to pre 1900 laws refers only to statutes of general application or whether it applies also to the rules of Common Law and Equity. Clearly, only the pre 1900 English statutes are in force in Nigeria.
5.0 SUMMARY
In this unit, we have discussed how the doctrines of equity were introduced into Nigeria through various ordinances and the controversy generated by the repugnancy doctrine in rela- tion to customary law. In unit 3, we shall treat the relationship between equity and common law.
6.0 TUTOR-MARKED ASSIGNMENT
Explain what you understand by the repugnancy doctrine and its effects on customary law.
7.0 REFERENCES / FURTHER READING
Hackney J., (1987) Understanding Equity and Trusts; London: Fontana press
Jegede M. I. (2007rep.) Principles of Equity; Ibadan: Unique Design/Prints
Park, A.E.W., (1963) The Sources of Nigerian Law
Volume 8 Laws of the Federation of Nigeria, 2004.