Ife Journal - 16

Jurisprudential Issues in the Administration of Justice in the Yoruba Pre-Colonial Era…, 193
THE ADVOCATE ISSN 0339 VOLUME 31 2015
The International Journal of the Law Students’ Society, Obafemi Awolowo University, Ile-Ife, Nigeria 193-213
Jurisprudential Issues in the Administration of
Justice in the Yoruba Pre-Colonial Era vis-à-vis the
English Law: Repugnancy of the Repugnancy
Test
Olaniran Quadri Oladimeji
Introduction
It would be accurate to posit that the word “jurisprudence” was the first of the social sciences
to be born. Its provinces have been determined because the nature of the subject is such that
no delineation of its scope can be regarded as final. For instance, someone may read any of
the recommended standard textbooks on criminal or company law with assurance that
whichever book he does read, he will derive much the same idea as to what the subject is all
about. It is certainly not like that with books on jurisprudence because the word,
“jurisprudence” varies so widely in subject matter and treatment that the answer to the
question, “What is ‘jurisprudence’?” will be pretty much whatever anyone wants it to mean.
This kind of answer will suggest that the question is complicated with respect, for example, to
the use of the word.
Meanings and Definitions of Jurisprudence
Before an attempt is made to give definitions to the word “jurisprudence” as posited by some
theorists, it should be said that the word cannot be defined in exactitude because it is elusive.
There can be no doubt that it is desirable, from the beginning, to define and delimit the scope
of jurisprudence because problems will arise as the term “jurisprudence” is not only vague but
also difficult to define with accuracy. Therefore, to ask for the meaning of the word is to be
reminded of the old adage, quothominestotsenlenliae.1
For not only does every jurist have
his own notion of the subject matter and proper limits of jurisprudence, but his approach to s
governed by his allegiances or those of his society by what is commonly referred nowadays
as his “ideology”. No doubt, such ideological factors are frequently implicit rather than
openly avowed, thus Holmes’ description of them as “inarticulate major premises”.
Nonetheless, they are to be discerned in juristic theories, both past and present.
It has been said that traditional theories in jurisprudence reflect the old “ideologies” as
1
Terence. Phormio. 11. 14 The word “jurisprudence” is not generally used in the languages
in the English sense. Thus, in French, it refers to something like our “case law” theories
generale du droit being used to cover our meaning of jurisprudence.
193

194 Olaniran Quadri Oladimeji
will be seen in the course of the essay as those of natural law or of utilitarianism. It may be,
though, that lawyers, whatever their philosophical leaning, have through their training and
environment more in common than what divides them. Nor is law unique in its tendency to
reflect the ideologies of its place and time, for similar characteristics will be encountered in
many other fields in history, ethics, and psychology and in all social sciences. Nor have the
natural science escaped. However, the close relationship of law to the social structure
inevitably brings into prominence the ideological context of legal theory.2
It should be said
that the Latin expression, jurisprudentia means either “knowledge of” or “skill in law”. The
Roman jurists never developed any such subject as jurisprudential.3
In the sense of “knowledge of law”, the word sometimes described expositions of
particular branches of law, e.g., the title “equity jurisprudence” was once given to a textbook
on equity4
. This use of the word, current on the continent, is no longer fashionable in
Common Law countries. In a wide sense, “jurisprudence” is used also to describe the legal
connections of anybody of knowledge: So “denial jurisprudence” “architectural
jurisprudence” or “medical jurisprudence” would be titles for expositions of such aspects of
dentistry, architecture or medicine as may be important in law.5
As will appear in word, least of all jurisprudence has a proper meaning there is
also the argument that such studies as these are not scientific, which presupposes
some special meaning of the word science. The reason for avoiding a term like medical
jurisprudence is that this kind of expression is no longer current in English-speaking countries
although occasional instances may still be found. It may be stated that in French law,
lajurisprudence is the term applied to the body of law built up by the decisions of particular
courts.
Also in England, it was not until the time of Benthan and his disciple, Austin, in the early
part of the 19th century, that the word began to acquire a technical significance among
English lawyers. The former distinguishes between examinations of the law as it is and as it
ought to be (expository and censorial jurisprudence) being much concerned with law reform
deontology. On this note, I want to make reference to some definitions given by some jurists
on jurisprudence.
Holland defines jurisprudence as the formal signs of positive law. Salmond sees
jurisprudence as the knowledge of law. George Palon says that the term jurisprudence is
sometimes used as an imposing synonym for law. CK Allen defines it as the scientific
synthesis of the essential principle of law. Julius Stone has described jurisprudence as
lawyers’ extra version. According to him, it is the lawyers’ examination of the ideas and
techniques of the law from present knowledge in disciplines other than the law. TA Cowan6
states that law is a craft that its craftsmen have selected out and reserved to themselves over
the millennia: an area of human behaviour while the boundaries of these areas are not sharply
defined and while what goes on inside of it is subject to so much dispute yet its existence can
2
Schwartz and Miller (1964) 70 Am. J Sociology 15.
3
Ulpian’s remark in The Digest. Quoted in the opening of Justinian’s institutes
4
Ames, Equity Jurisprudence.
5
Dias, Introduction to Jurisprudence, p. 10.
The term “medtco-Iegal jurisprudence” has largely been superseded by forensic medicine.
6
TA Cowan in the introduction to his book tilled, The American Jurisprudence Reader.

be sensed even by a small child those who study the nature of these areas of human
endeavour are engaged. In the study of jurisprudence, they may walk inside the law itself
studying the relationship of its parts to one another and the relationship of the parts to the
whole and they may be interested primarily in the interaction of law and other learned
disciplines. Those who work within the structure of the law itself examining it bit by bit,
section by section or in overall, are engaged in what is called analytical jurisprudence .Cowan
then concludes that jurisprudence is the sum total of organised reflection on the nature of law
and its relations to other learned disciplines.
Salmond describes jurisprudence as the name given to a certain type of investigation into
law. An investigation of an abstract, of general and theoretical nature, which seeks to lay bare
the essential principles of law and legal system. Salmond goes on to postulate that
jurisprudence comprises the philosophy of law and it is a second order subject of philosophy
whose aim is not to discover new rules but to reflect on the rules already known just as the
philosophy of science concerns itself with scientific laws already discovered rather than the
discovery of new laws. He identifies another branch of jurisprudence as consisting of the
analysis of legal concepts like right, possession, ownership and sovereignty which are studied
in the ordinary branches of law but notes that jurisprudence tries to build up a general and
more comprehensive picture of each concept as a whole. He then concludes that in this
respect, the writer on jurisprudence appears in the sense of a logician elucidating legal
notions, unraveling confusion and constructing “synthesis” of legal concepts.
Furthermore, the following definitions offered by other jurists will provide further insight
into what has been considered as the subject matter of jurisprudence. According to Ulpian,7
jurisprudence is the knowledge of things divine and human, the knowledge of the just and the
unjust. Holmes8
says that jurisprudence, as “I look at it”, is simply law in its most generalised
nature; every effort to reduce a case to a rule is an effort of jurisprudence. Dias9
states that
jurisprudential theory concerns thought about law on the broadest possible basis. Jolowuze
describes jurisprudence as a general theoretical discussion about law and its principles as
opposed to the study of actual use of law. Hall says that jurisprudence includes the search for
ultimate concessions in terms of which all legal knowledge can be significantly expressed.
Wortley states that jurisprudence is the knowledge of law in its various forms and
manifestations. Cross states that jurisprudence may be roughly described as a study of a
lawyer’s fundamental assumptions. Karl and Llewellyn10
see jurisprudence as a very broad
one which means any careful and sustained thinking about any phase of things legal if the
thinking seeks to reach beyond a practical solution of an immediate problem in hand.
From the foregoing, it is clear that jurisprudence is not and could not be a one-time or a
one-answer subject. No wonder Patterson warns that “incursion into jurisprudence is always
an adventure into the realm of ideas in which the adventurer must pick his ways among
incongruent terminologies”. Dias has also counselled that the best guarantee of independence
and originality in thought as far as jurisprudence is concerned is
breadth of view a sense of perspective and a sympathetic appreciation of what
7
Ulpian, Jurisprudence and the Law, p. 2.
8
Dias, n.5, p. 16.
9
Holmes, “The Part of the Law 1887, 10 Harvard Law Review.
10
Kari and Llewellyn, “A Realistic Jurisprudence, The Next Step,” 30 Columbia law review
1930.

people have said and are saying no one theory provides the best or exclusive avenue
to truth and those who chose to tread one path rather than another are not for that
reason misguided and in darkness.
From all the above definitions, it suffices to say that indeed, the problem of definition of
words looms large in jurisprudence and transverses the entire terrain of law, thus creating a
nightmare for the lawyers. Professor Ajomo MA notes that
law itself is mainly an exercise in controversy and so the teaching of jurisprudence
begins on the hypothesis that words have no proper meaning except in a context
which they are used by the speaker.
Hence, every of the definitions is correct about jurisprudence.
Nature and Scope of Jurisprudence
The appropriate subject of jurisprudence, in any of its different departments, is positive law.
Meaning by positive law (or law emphatically so called) is law established or “positum” in an
independent political community by the express or tacit authority of its sovereign or supreme
government. As principle abstracted from the positive systems are the subject of general
jurisprudence (or the philosophy or general principles or positive law), so is the expositive of
such principles is exclusive or appropriate object.
Jurisprudence is the science of what is essential to law combined with the science of what
it ought to be. It is particular or universal. Particular jurisprudence is the science of any actual
system of law or of any portion of it. The only practical jurisprudence is particular. The
proper subject of general or universal jurisprudence (as distinguished from universal
legislation) is a description of such subjects and ends of law as are common to all systems.
For instance, the law of contract and torts are concerned with different rights which one
person may have against another. Jurisprudence, however, studies the meaning of the term
“right”, how it is used and how it works. Similarly, the scope of jurisprudence extends to
investigate such other legal concepts as acts, intentions, negligence, ownership and
possession.
Jurisprudence concerns itself with such questions as: Is law dependent upon government
for its existence? Can law exist independently of the government? Does law merely reflect the
prevailing belief of the majority of individuals in a given society? Is it an instrument of social
control through generalisation imposed by some dominant groups? Is it derived from some
outside source? Is justice an inherent necessary character of law or is it an external standard
by which the rightness of particular laws or of particular actions pursuant to law is to be
measured? It would appear clear that the most bases of all legal concepts are the concept of
law itself. If jurisprudence is concerned with the analysis of legal concept, the first problem is
to analysis these basic concepts. At the centre of enquiry or analysis is the question: What is
law? Attempt to answer this question has given rise to the theories about law which have been
put forward through the various stages of human civilisation. Of these theories mention can
be made of:
1. Natural Law Theory: which defines law as the dictates of reason;
2. Imperative Theory of Austin: which defines law as the command of the sovereign
which he annexed to this sanction;

3. Pure Theory of Kelsen: which conceives of law as a system of rules or norms;
4. Sociological Theory of Roscoe Pound: which sees law as an instrument of social
engineering;
5. Historical School of Savigny: which suggests that law should be a reflection of
common consciousness or a spirit of the people;
6. The Realist Movement: which conceives of law in terms of its actual functioning and
operation, i.e., the practice of the court as Holmes puts it: “aprophesy of what the
court will do and nothing pretentious is what I mean as law””
7. The Economic School of Hegel: which explains law in terms of class relations: law is
seen as an instrument of oppression in the hand of the ruling class.
What has emerged from the discussion so far is that legal theory is concerned with law as
it exists and functions in the society. Its various components are points where jurisprudence
meets other disciplines such as sociology, economics, history, religion, politics, psychology,
etc. It would, therefore, appear that one task before jurisprudence is to provide a link between
law and these other disciplines and so help to locate it within its wider social context. Hence,
interdisciplinary approach is being advocated for which has become imperative in the study
of jurisprudence for the simple reason that a full understanding of the complexity of law and
of man’s experience cannot be attained through the medium of any single discipline partly
because there are some arbitrariness about the impartation of knowledge in the discipline.
There is a good deal of dovetailing or overlapping among other disciplines.
For a proper understanding of any problem of importance in human experience, therefore,
we need to draw upon the resources of several disciplines together with the facts of
ideological differences among writers to which attention have been drawn earlier on which
makes it difficult to define the province of the scope of jurisprudence with finality at any
given time.
The English Common Law and African Common Law through “Proverbs” Compared
It must be mentioned expressly that the English Common Law has been promoted to a level
where it has been regarded as the beginning and end of justice or juristic excellence. O’
Sullivan notes that “the common law of England is one of the greatest civilizing forces in the
world. Over a long series of centuries men have recorded their conviction of its essential
worth and excellence….11
Hawarde’s Report of Cases remarks that the “the common law is
the surest and best inheritance that any subject hath and to lose this is to lose all”. For
William Blackstone, “The common law is the best birthright and noblest inheritance of
mankind.”12
Without any room for dispute, it may be said that the Common Law of England is the
brick of which the edifice of the American Constitution is built. Countless countries, most
especially within the former British Commonwealth, operate legal systems seriously
influenced by the Common Law of England. Nigeria is no exception. The Common Law of
England is, statutorily, a law applicable in Nigeria. There is no specially unique thing about it
since the idea implicit in its principles and assumptions are also shared by other people of
Africa with particular reference to Yorubaland. It must be said that proverbs carry with them
11
Richard O’ Sullivan in his “Hamlyn Lecture” in 1950.
12
The inheritance of the Common Law, London: Sevens and Sons, 1950, p. 3

a force of law which the Common Law of England possesses. Although proverbs, folklores,
etc, constitute our Common Law, it is by no means derogatory of the colonialists to say that
our proverbs are unwritten.
On this note, therefore, it is proper and legitimate to examine and analyse a few
principles of this common law of ours in order to determine whether or if they differ in any
significant way from the principles of law generally referred to as the Common Law of
England.
The Divine Right of King
It is proper to see how the English people looked at their monarchs, an examination of what
an average modern citizen might consider as most outrageous principles which at one time
was a feature of the Common Law. The rule of the king by prerogative and by Divine Right
meant that no citizen in the realm could query the king even if he did the most heinous
wrongs. God had enthroned him, so to say, to rule and misrule with impunity, on this side of
the gave at least.
The preference given to the divine right of kings in the English Common Law was
manifested in the blatant refusal of King James ) to accept that the King’s powers were
subject to, and limited by, the law. The occasion on which this happened is worth recalling. It
was in 1616 in the Star Chambers. Sir Edward Coke was the chief justice of common pleas.
Describing the incident, Lord Denning wrote:13
In the days of King James 1, there was a great judge called Lord Coke who boldly
asserted the independence of the judges. On one occasion the king summoned all the
judges before him and told them that he proposed to take any cases he pleased away
from the judges for decision and to try them himself. He called in aid the authority of
Archbishop Bancroft, who decided or declared that it was clear in divinity. Such
power said the Archbishop, doubtless belongs to the king by the word of God in the
scripture. But the chief justice told the king that he had no power to do so, and that
all cases ought to be determined in a court of justice. King James replied: “I always
thought and I have often heard the boast that Your English law is founded upon
reason of that be so, why have not land others reason as well as you the
judges?” The Chief Justice replied, “True it is, please your majesty, that God has
endowed your Majesty with excellent science as well as great gift of nature, but your
majesty will allow me to say so, with all reverence, that you are not learned in the
laws of this your realm of English... which is an art which requires long study and
experience before that a man can attain to be cognizance of it. The law is the Golden
met-wand and measure to try the causes of your Majesty‘s subject and it is by that
law that your Majesty Is protected in safely and peace.” King James, in a great rage,
said, “Then is am to be under the law which it is treason to affirm”. The Chief
Justice replied, “Thus wrote Bracton, “The King is under no man, but under God and
the law.”
What then was our own situation regarding our kings? Using Yoruba as a specimen, ours
is a country with multiplicity of tribes. No doubt,there may have been some tribes whose
citizens were basically republican with only a token respect for traditional rulers. It is,
however, certain that the major tribes such as the Hausa/Fulani, Yoruba and Edo, witnessed
13
Lord Denning, What Next in the Law, London: Butterworths, 1982, pp. 311-312.

the rule of kings by full “prerogative and Divine Right”. Long before the advent of any
foreign culture of colonial rule, the Yorubas, for example, by their common law, regarded the
kings with such extraordinary, indeed supernatural, respect that they addressed and still
address them simply as “Kabiyesi” (“Ka bi o ko Si” which means “questioning (or querying)
him is out of question”. This means that it was forbidden to raise a query for the king to
answer. Any wrong he did was without remedy. So total was the authority of the king within
his kingdom and so final were his decisions and actions that if a person’s daughter, who was
seen entering the king’s palace, was thereafter not seen again, that person was not allowed to
do as much as go near the palace to ask what had become of his/her daughter. The “king’s
foot” was said to have been “placed on the girl”.
In some parts of Yorubaland, the king is described as iku, ekejiorisa, i.e., “death, the twin
brother of a god”. The king is to be feared the way gods and death itself are feared. The
Ijeshas described one owa (crowned king) as “owaniniisokun, orisa 1’ aafin” (He is king on
the street, but a god in the palace).
In Oyo, the king’s divinity was further exaggerated to make it unthinkable to plot against
him even in faraway provinces. There is a saying, “osupangbeoke o mooyo, obangbe lie o
moaraoko” (as the moon remains stationary and far away above), and yet knows over Oyo,
the capital, so the king remains at home and knows what his subjects are doing in the
province.
Till today, the Edos regard the Oba of Benin City as a god in human form. His law is still
“law” to many of his subjects. Still today, in most parts of Nigeria, the common law of the
people command so much respect for the institution of kingship that it is not permitted for
anyone to say “the king has died”. The king, as a “god”, does not die, cannot die. For
instance, to announce a king’s death, the Yorubas say the king has gone into the ceiling or
rafter to conceal himself: Oba w’ aja’14
. Some tribes say the king has joined his ancestors.
Whatever you say, you are not permitted the licence of associating death with the king.
From the foregoing, it appears quite obvious that the principle of the divine right of kings
and their offspring, and the king can do no wrong, were not unknown by indigenous
societies before the advent of the British and their style of government. These things
were part and parcel of our customs and traditions long before then. They were part of the
unwritten common law of our people. The doctrine of sovereign immunity existed with us
and was enjoyed by our kings (who incidentally, were the government)15
long before the
British reached our shores
The only question left to be asked is: Are our judges willing and ready, just as Sir Edward
Coke was, to tell the “king” (government) that he, with all his might, is under God and the
law? For some, unless our courts are manned by men like Sir Coke, our society cannot know,
much less experience, freedom and no one stands to be worse injured by such dereliction of
duty by the court than the “king” himself. This, then, is a message to the judges who mann
our courts: let the maxim continue to be valid here, as in England, that “rex non
debetessesubhomme, sed sub dee et sub lege, quialexfacitregem” (the king is under no man
yet he is under God and the law makes the king). From the foregoing, between the
English Common Law and our own custom through the concept of the divine right of
14
Fabunmi, Yoruba Idioms: No 339.
15
The word for “government” in Yoruba is Ijoba (Ijo-oba) meaning the meeting or conference of
kings-Royal Assembly.

king.
The Rule against Hearsay
This rule is firmly rooted in the Common Law of England which has found its way into the
statute books (evidence laws) of all countries that were in the former British commonwealth.
It should be said expressly that this Common Law doctrine is under the fire of criticism from
commentators who feel that it is one of the devices employed by technicality to puncture the
British system of justice thereby facilitating the escape of offenders from the grip of the law.
Simply put, the rule against hearsay requires that a witness should not talk about something of
which he has no personal knowledge. He is expected to rely on his own observation and
personal recall of the matter in dispute. It is no more news that the doctrine against hearsay is
discernable in our own common law before the advent of colonial law. For instance, the
following proverbs are explicit enough on the doctrine against hearsay:
Ojumewakojoojueni, irohinko to afojuba (Ten eyes are not as good as one’s own,
even though only two, news is not as reliable as eye witnessing).
This means that the account of an occurrence, even if related by five person (ten eyes), would
still be less in quality than the detail a person gathers from witnessing the happening himself.
Nigeria’s former President, General Ibrahim Babangida, on his return from Libya, was
reported to have said in answer to a question put by a reporter, Ganiyajiji (Hausa) meaning,
seeing dismisses hearing.
As a court marshal would conclude: “The General ordered me to shoot” is a better
defence than “the sergeant told me that the General ordered the shooting”. The Wolof in
Senegal say: Waldil, so guisseyjuemal (Deny, but what thou seest: you may deny anything
else but it is not allowed for you to deny that which you have seen with your own eyes).
The conclusion that recommends itself from all the proverbs we have so far considered is
that these rules are universal, written as it were, either in these rules in the very nature of man
as an intellectual being or in the skies (enveloping the earth) by our very maker. To such rules
no nation can be an exception. As English Common Law makes inadmissible in both civil and
criminal proceeding so also the Yoruba culture does not temper justice on the evidence
garnered by hearsay.
The Principle of Natural Justice
Hear the other side or hear both sides and that no man can be a judge in his own case is the
fundamental principle in the administration of justice in Common Law of England. To be
precise, the twin pillars of natural justice are under the audi alterempartem (a man is to be
heard before he is condemned) and nemojudex in causasua (a man must not be a judge in his
own case). By these principles of natural justice, the courts are placed under a duty to listen to
all the parties to a dispute before making up their minds on any of the issues involved in it.
Erie CJ once said that: “It is an indispensable requirement of justice that the party who
has to decide shall hear both sides giving each an opportunity of hearing what is urged against
him.”16
By this rule, which England herself received from Roman law, “no man is to be
condemned, punished or deprived of his Property in any judicial proceedings unless he has
16
Herbert Broom in Re Brook, 16 C. B. H. S in a selection of legal maxim (10th edn), p. 65.

had an opportunity of being heard”.17
The cases defy listing in which judges in England have emphasised, reemphasised and
expanded this principle. In Fisher v. Keane,18
the court held that the principle is binding upon
the committee of a club wishing to expel a member. By an unending chain of judicial
decisions and by an uncompromising application of this principle of natural justice to cases
before them, British judges have succeeded in anglicising this universal rule of natural justice.
Superior courts of record in Nigeria have also followed the footsteps of the England
courts on this principle. After all, most judges of the superior courts in this country were,
prior to 1960, British. They decided first cases which formed the foundation we had to build
upon. The decisions of our courts went on appeal to the Privy Council. All these had the
effect of building up a strong British background to our administration of justice.
The question that remains to be asked is: Was the principle of natural justice imported
into this part of the world in the vehicle of any colonial law or was it with us before the
advent of any colonial master? Is there anything in any part of our own indigenous common
law which is embedded in proverbs and folklores and others that can prove that we did or did
not apply this principle of natural justice before we had contact with the British? A common
and popular saying among the people of Yorubaland goes thus to show that the principle of
natural justice was not imported to us.
Agbotienikandajoagbaosikani: (He is the king among wicked who passes judgment after
listening to evidence from only one side).
Another Yoruba proverb runs thus
Agbaebita o nranapakanaso: (Only a mischief-maker sews one side of a garment
leaving the other side unsown and thereby giving the dress a distorted appearance).
Further on this, another proverb says:
Etigboekejikio to dajo:19
(Ear, hear the other side before you pass judgment)
Yet, another proverb on the doctrine or principle of natural justice which says that:
Tofu bakooju, ala a to: (When the eyes of one parity meet the eyes of the other
party, the farm boundary dispute will be resolved).
Not only must the judge listen to both sides, he is required to deliver his judgment in the
presence of the parties:
A ki i ifaorilehinolori: (We don‘t shave a person‘s head on his absence).
In his judgment, the judge is, by Yoruba juristic principles, enjoined to fairly weigh the
17
Per Parker, B in Re Hammer Smith Rent charge 4 Ex, 87 at 97.
18
II ChD353.
19
Burton page 26

evidence on the cases of both sides with unequivocal impartiality. The proverb for this
principle of justice says:
Kniigun se ti obo ko Se, igunpa lori obopanidi: (What has the vulture done which the monkey
has not done? The vulture is bald in the head, the monkey is similarly bald in the bottom).
The examples of proverbs given above surfice to show that audi alterempartern is not
foreign to our legal system. It is a rule of natural justice which all intelligent beings cannot
but respect. It is one rule that makes the judges so unique and onerous. It is quite easy to do
injustice. All that is needed is listen to the first man that speaks and rule against the silenced
party. It is believed by everyone that to sit to adjudicate over others is the most tasking aspect
of a judge’s work because the intricacy of administration of justice includes faithfully
observing what the audi alterampartern demands.
It was revealed that King James I, inspite of Lord Coke’s pronouncement, nevertheless
went ahead to try his hand on some cases as a judge. He was said to have been so perplexed
when he heard both sides that he abandoned the attempt in despair commenting: “I could get
on very well hearing one side only, but when both sides have been heard, upon my word I
know not which is right.”20
The foregoing proverbs and many more are our own common law maxims for requiring a
judge to listen to all the parties before deciding any case. These are our own audi alterem
partem by which customary tribunals assist themselves to do justice. We had them long
before the British introduced their own rules of practice and procedure. It must be said that
this rule of practice was laid down not by man but by his maker. Did God not turn to Eve in
the Garden of Eden to listen to her own side after Adam had accused her of misleading him to
eat the forbidden fruit?21
It is also fundamental to the administration of justice under the
Common Law of England that no man should be a judge in his own case (nemojudex in
causasua). The judges applied it to disqualify their king (King James I) from adjudicating in a
case in which he was personally interested. Flarbet Broom put it this way:
It is a fundamental rule in the administration of justice that a person cannot be judge
in a case wherein he is interested.., and, therefore, in the reign of James 1, it was
solemnly adjudged that the King cannot take any cause, whether civil or criminal,
out of any of his courts and give judgment upon it himself; but it must be determined
and adjudges in some court of justice according to the law and Custom of England,
and the judges informed the king that no king, after the conquest, assumed to himself
to give any judgment in any case whatsoever which concerned the administration of
justice with the realm, but these were solely determined in the court of justice...
The judge even applied the rule to debar anyone among themselves from deciding a case in
which he was interested. They argued they had a duty to do so because it was against reason,
if wrong be done any man that he thereof should be his own judge and they very often had
recourse to the maxim, potestessesimul actor efjudex (no man can be a suitor and a judge at
the same time). A good case for illustrating the application of this maxim of the Common
20
Lord Denning, n.13, p. 312.
21
The Holy Bible: Genesis Chapter 3 verse 13.

Law is Dimes v. Grand Juncture Canal Co.22
In that case, Lord Chancellor himself (who
appointed the judges) was found to have made a decree in favour of the Grand Juncture Canal
Company in which he was a shareholder, a fact which was unknown to the other party. The
House of Lords, per Lord Campbell, held.
It is of the last importance that the maxim that no man is to be a judge in his own
case should be held sacred and that is not to be confined on a cause in which he is a
party but applies to a cause in which he has an interest.
Their Lordships continued:
We have again and again set aside proceedings in inferior tribunals because an
individual, who had an interest in a cause took part in the decision. And it will have
a most salutary effect on these tribunals when it is known that this High Court of last
resort, in a case in which the Lord Chancellor of England had an interest, considered
that his decree was on that account a decree not according to law, and should be set
aside. This will be a lesson to all inferior tribunals to take care not only that in their
decrees they are not influenced by their personal interest, but to avoid the appearance
of labouring under such an influence.
It is noted that our courts have applied the same principle with firmness not incomparable
with that of the courts in England. It remains to be asked from the foregoing the question if
this rule was brought to us or was with us before the British introduced their own laws. To
answer this question, a brief allusion will be made into three of Yoruba proverbs that are
relevant:
Farifari ko le lan ara re: (The barber can‘t shave his own hair).
Abereko le gbongbon k obo ara re: (A needle, no matter how clever, cannot thread
itself).
Abereko le di ihoidiara re: (A needle cannot mend the hole at its own tail).
It should be stated that proverbs like these are interjected by the elders when a party tries
to judge his own case. As soon as a party to a dispute attempts to dictate what the judgment
should be in his own case, he is admonished to stop speaking because “the barber does not
shave his own head” neither “can the needle mend its own hole”. By these short but pithy
indigenous maxims, our societies expressed their acknowledgment of the rule of natural
justice which precludes a person from adjudicating in a mater affecting him. But for the
existence of such a rule in our common law, the green light for disorder would have been on,
long before the arrival of the white men.
The Principle of Character Evidence
The Common Law of England, as written by the judges, has always had it as a rule of
evidence that you must not attack the character of your opponent unless you do not mind
yours being attacked in return. A party who exposes the character of the other by that very act
22
House of Lords cases, 759

consents to his own bad character being exposed. It is a rule of evidence which the judges
formed from the English adage, “Those who live in glass house must not throw stones”.
Our own indigenous common law find expression sometimes in proverbs, sometimes in
folklores and fables. One of the folklores needs to be put down below for further elucidation
that the rule of character evidence was in existence before colonialism.
Once upon a time tortoise had a slave whom he loved like a son. No one knew that
the slave was not his son. He went everywhere with this slave. It happened that
tortoise had a defect. He often told “small lies” to prop up his ego. One day, he went
with his slave to visit the family of his fiancée. In the evening, he started to boast
about himself and his achievements. “In those days,” he said, “I had three horses:
one was white, another black and third brown.” He remarked that “I rode the white
one on festive occasions, the black on other days”. Then the slave, irritated by these
lies, cut in: “When did you have all these animals?” He asked in the presence of the
fiancée and her parents. Tortoise concealed his embarrassment under the dignity of
experience: Oh,” he replied, “You can’t possibly remember the time because I had
not yet purchased you by then”. The slave was ashamed and unhappy that he should
thus be disgraced. On their way home next morning, he complained bitterly and
tortoise retorted, “A person carrying a leprous sport on his back must not make jest
of another with a ring worm on his head”.
It is manifest from the foregoing that there is no difference between the English Common
Law under discussion and the lesson taught by this folktale which represents a section of our
forefathers’ unwritten evidence law. It must be said that the major purpose of evidence law is
admissibility and the general test to be applied to know whether a fact is admissible or not in
a case is relevance. Generally, a matter is admissible in evidence if it is relevant to any issue
needing to be established in a case. Our own indigenous common law, embedded in proverbs,
fables and folklores, also recognises that in any problem, only facts or things which are
relevant can help to resolve matters. This is manifest in this proverb
“Enigbeleninsinoku,ariwolasannieninsunkunnpa, nitoripe Ekunko le gbeoku de sare
e: (It is the person who digs the grave that partakes in burying the dead, the person
weeping is making mere noise, because tears cannot lift a corpse into the grave).
The purpose of burying the dead is to preserve the health and life of the living by covering up
the corpse which otherwise would endanger the public. Thus, the three things which are
relevant are digging, lifting the corpse into the grave and covering up the grave. Our
indigenous common law, so to say, rules “tears” irrelevant and, therefore, inadmissible in a
case of burial.
The Doctrine of Caveat Emptor23
This doctrine means “let the buyers beware”. In English law, the duty is on the buyer to be
careful. It is inconvenient for a seller to highlight the defects in his own commodity. As the
English adage says, the fish monger never says his fish is rotten. It is discernable from the
following proverbs that the doctrine of caveat emptor has been with us in this part of the
23
Caveat enptor literally means buyers beware.

world from the beginning.
Oriagbeboadiyel‘oja. Osareraa, oyeogunofipaogun Nialadiyewataa : (You rush to
buy a full grown hen in the marketplace; would the owner have offered it for sale if
it were laying twenty eggs and hatching the twenty?)
Another proverb goes, thus:
Kosalakarat‘onta tutu: (No cake seller ever says her cake is cold).
Still on the doctrine of caveat emptor as revealed by our rich culture, manifest in proverbs we
have:
Kosialamala, ti so pee t oun, kiyi: (There is no seller of amala food that would
proclaim that her own is not edible).
It could then be said that to reinforce the same point about individualism in Yoruba juristic
thought, what in English law is the principle of caveat emptor (let the buyer beware), is
evident in the above proverbs.
The Maxim of Volenti Non Fit Injuria
The English Common Law principle of volenti non fit injuria means that if one, knowing and
comprehending the danger, voluntarily exposes himself to it though not negligent in so doing,
he is deemed to have assumed the risk and is precluded from recovering for an injury
resulting therefrom. Hence, it may be said that there is no difference between the Common
Law principle of volenti non fit injuria and the following principles embedded in proverbs.
Ma to omisi mi larakiidetiodo: Don’t spill water on me should not go to the
spring to fetch water.
Mafara lain mikunioja: Don’t brush against my body must not go to the
marketplace to buy thing.
The Concept of Legal Personality
The concern for social cohesion in Yoruba juristic thought would also explain the principle of
collectivity in the definition (at least in certain) of what constitutes legal personality. The
legal person in English law, for instance, is an individual personality or a body corporate. In
Yoruba juristic thought, as in the traditional legal systems of most other African people, the
legal personality may transcend the individual. John Mbiti24
explains the point in the
following statement:
The guilt of one person involves his entire household including his animals and
property. The pollution of the individual is corporately the pollution of those related
to human beings, animals or material goods.
Hence, in Yoruba philosophy of law, we have
24
John Mbiti, African Traditional Religions and Philosophy, p. 207.

Isueni lo to owoeniboepo: (It is a man’s yam that pushes his hand into the palm oil
(in the process of being taken).
A man may suffer indignity or even incur legal penalty on account of a relation involved in a
situation. Again, we have:
Owuasiwereki o ruigba re woojaawonaraile re nikiigba: The madman would like to
carry his tray of junks to the marketplace only that his relations, whose reputation is
also at stake ,will not allow him to do so.
Collective responsibility imposes collective obligation to ensure harmonious relations in
the community, hence the proverb below is instructive:
Bi ara lie enibanjekokoroburukuti a kobabawiherehuru re konijeki a sun loru: If a
kinsman is not warned in time when he eats poisonous insects, the resulting itch and
discomfort will keep the whole family awake.25
It would seem that there are sayings which run counter to this notion of the corporate and
collective responsibility in matters of crime and punishment in the proverb below:
Ikatiosenioba n ge: The finger that offends is that which the king cuts.
Nitoriorandidaniafii 1‘oruka: We have names for the purposes of identification in
case we would commit criminal offences.
Individualism certainly has a place in Yoruba juristic thought, as would be shown
presently. But the direct fastening of responsibility to individuals in criminal matters implied
in these sayings does not detract from the collective sense of shame but the reputation of the
family would have been destroyed.
The Doctrine of Sanctity of Contract
Under the Common Law of England, a contract is an agreement between two persons and the
essentials are offer, acceptance and consideration. Where the term of the agreement cannot be
fulfilled by the party who has taken consideration, he is bound to refund it. This precisely is
the position expressed by these proverbs:
Bi ebitibapaeku a sifieyin Funeleyin: (If the trap fails to catch the rat, it has to return to the
owner the palm-nut placed on it as a bait).
The courts are bound to give effect to a contract between two persons once an agreement is
proved even if the terms of the contract are more favourable to one party than to the other.
The fact also that one of the parties has not acted wisely by entering into such a contract is
irrelevant for the purpose of enforcement. The principle receives the blending of our own
common law, thus:
Ore nje ore, ojanjeoja. Aki dupe motaopo: (A gift is a gift, a sale is a sale but no one
25
Delano Page

will thank you for I have sold it to you cheap).26
African Equivalence of English Maxims of Equity
The growth of the majority of African countries’ legal system has shown that though there
might be benefits derived from the effects of colonisation, but the truth must also be told. Not
allowing these countries’ systems of law to grow has several negative effects on the growth of
their indigenous laws. Many mythical dispositions have been subject of thought by many as
to misconceptions surrounding the legal systems of many African countries. Pre-colonial
administration of justice and law in many of these countries, particularly the Yoruba people
of Nigeria, has shown some similarities with the growth of the English Common Law.
Some basic principles of law in the English law also have their equivalents in the African
jurisprudence. For instance, the principle of fair hearing in African jurisprudence is portrayed
in the aphorism, agboejoapakan da, agbaosikani (you cannot decide a case on the submission
of one party). Also, the principle that you cannot be a judge in your own case is exemplified
in Bi a bagbeokofun were, yoorokosodoara re (if a madman is given hoe, he will weed
grasses) and that Nitoriti a baa da oranniafiisomol‘oruko (we bear names, for purposes of
identification, in case we would commit criminal offences) while the doctrine of judicial
precedent is rooted in ilelaawoka to somol’oruko (lineage dictates the name by which a child
is christened). These and many more are conspicuous.
Thus, the following are the African equivalents of the popular maxims of equity:27
Equity will not Suffer a Wrong to be without a Remedy
As JO Fabunmi28
puts it, it is the duty of the court to provide a remedy for a plaintiff if none
has been prescribed in the statute book; for where there is a right, there must be remedy (ubis
jus ibiremedium).29
The Yoruba equivalent of this is captioned in the Yoruba jurisprudence
that Agbakiiwalojakoriomotitunwo (an elderly person cannot be present in the market place
and allows the head of a young baby to hang).
Equity follows the Law
The Yoruba equivalent is Esiniwajunit’eyin i wosare (the horse which runs ahead challenges
the one behind to follow suit).
Where the Equities are Equal, the Law Prevails
The Yoruba equivalent of this maxim is summed up thus: Ojuoroniilekeomi,Osibatani I
lekeodo (no matter the size of the river, water-lettuces stay afloat).
Where Equities are Equal, the First in Time Prevails
Its Yoruba equivalent is Bi igiba Woluigi toke ni a koyan (when trees fall upon trees, the
topmost is first of all removed); also, Bi ma ba n jonitojoomoeni, taraenilaakoya: (when a
parent and his child are both ablaze, the parent first of all extinguishes the fire on himself).
26
J.O Ajibola ,Owe Yoruba, lbadan 8th imprinted p. 16.
27
William Idowu, African Philosophy of Law, Ile-Ife: Obafemi Awolowo, University Press.
28
Equity and Trusts in Nigeria (2nd edn), Ile-Ife: ObafemiAwolowo University, 2006.
29
David Hume, Philosophical Works, Vol. 111, 228-229.

He Who seeks Equity must do Equity
The Yoruba equivalent is eniti o ba da omisiwaju, yioteile tutu (Eni bale agba da ko se
arugbo bore) (he who pours water on the floor will walk on the wet ground).
He Who comes to Equity must come with Clean Hands
The Yoruba equivalent of this is, A kii taojaerupe, kagbowookuta or
inurerenigbeniikakiigbeeniyan: (one cannot plant tomatoes in the farm and subsequently
harvests yams).
Delay defeats Equity or Equity aids the Vigilant and not the Indolent (vigilantibus non
dormientbusjurasubveniunt)
The Yoruba equivalent is ijafaralewu or ai tete mole, ole n mu oloko or ‘eniyaralogunigbe
(delay is dangerous).
Equality is Equity
The Yoruba equivalent is Aparokankogajuokan lo, afieyi to ba gun oriebe (no fowl is taller
than the other, unless one climbs a heap).
Equity looks at the Intent rather than the Form
The Yoruba equivalent of this is Eniyan n woju, Olorun n wookan (‘Ohun to
waleyinefaojueje lo’ or ‘Oyelagba a wo (human observes the physical, God observes the
heart).
Equity looks on that as Done which ought to be Done
The Yoruba equivalent is, Ibiti a fegbin obi si, obi ti la le hunibe (when a colanut tree grows
at a location where one pre-planned to plant it, it is deemed planted).
Equity inputs an Intention to fulfil an Obligation
The Yoruba equivalent is Bi afieniyanjoyeawodi, o ye ko le gbeadie or A debieyin ma koagba
ole ni’ or ‘Iseyiise re ni, o nio n lo soko, o batioko de, o ode baa (a person in the position of
an eagle is expected to catch chicks).
Equity acts in Person Am
The Yoruba equivalent is Ojuawolawofiigbobe ( soup is served only in a plate and not at its
back).
Principle of Caveat Emptor (buyer beware)
The Yoruba equivalent is Oriagbeboadieloja, o sare be moo, se o ye ogun fi pa
ogunnialadietaa: (you rush to buy a full grown hen in the market, would the owner have
offered it for sale if it were to lay twenty eggs and hatch them all).
Ownership of Prcaty
The Yoruba equivalent is A kugbaAkatalowoakiti, koseni to je gba ‘le baba omolowoomo:
(one cannot deprive a monkey of its agile spirit; a man cannot be deprived of his father’s
estate).

Circumstantial Evidence
The Yoruba equivalent is Ajekelanaomoku lon taniko mope aje to kelana lo pa omo to hi loni
je (the witch sounded alarm, to wreak havoc yesterday, and today the child has died,, who
does not know that the witch that sounded alarm yesterday is responsible for the death)?
It should be noted that almost all the doctrines or principles of English legal system have
their African equivalents as evidenced in these Yoruba proverbs. It is, however, disheartening
that many of these equivalents were consistently overlooked by some authors because of
premeditated sentiments and frivolous objectives.
How Repugnant is the Repugnany Test?
The rule of repugnancy is to be enjoined by the high courts on customary laws. To observe
these rules, the customary law must not be repugnant to natural justice, equity and good
conscience. This clause has been used to strike down rules of customary law considered
uncivilised. But courts have never attempted to explain in details the meaning of the clause.
In Lewis v. Bankole, Speed Acting CJ said inter alia:
I am not sure that I know what the terms “natural justice, equity and good
conscience” mean. They are high sounding phrases. It would not be easy to offer a
strict and accurate definition of the terms.
The doctrine of repugnancy test came about under the English law to examine our law in
the bid to jettison and relegate customs and laws that are considered inappropriate and having
deleterious effects on the dignity of the human person and pervert the course of justice,
thereby perpetrating “evil” in the name of practices or customs. This test has been given
judicial approval in the different cases. JO Asein30
presents the case of Nkeje v. Nkeje,31
where Igbo culture that prevents a daughter from inheriting part of her deceased father’s
estate was rendered unconstitutional, null and void. In the case of Edet v. Essien,32
the attempt
by a man, who was betrothed to a lady, to take possession of the lady’s children from another
marriage, for failure of the new husband to return earlier bride price, was rendered by the
court as being repugnant to natural justice, equity and good conscience. Also, the Igbira
customary law was rejected in the case of Mariama v. SadikuEjo,33
where a man laid claim to
a child born about 15 months after parties had last had intercourse, but less than ten months
after divorce. The rule was that a child born within ten months of divorce belongs to the
divorced husband, and not the new husband. Rejecting the judgment, as being repugnant to
natural justice, equity and good conscience, Holden J said,34
The native law and custom which the present respondent asks us to enforce would
have this girl taken for lfe away from her natural parents, the appellant and her
present husband, and given to a total stranger. We fell that to make such an order
30
JO Asein, Introduction to Nigerian Legal System (2nd edn), Ababa Press Ltd, 2005.
31
(2001) 27 W.R.N 142.
32
(1932)11 N.L.R47.
33
(1961) N.L.N.L.R 81.
34
JO Fabtmmi, Eciuity And Trusts in Nigeria (2nd edn), Ile-Ife:Obafemi Awolowo University
Press Ltd, 2006.

would be contrary to natural justice, equity and good conscience, and we are
therefore not prepared to do so.35
All these customs were rejected using English repugnancy test as being repugnant to
natural justice equity and good conscience, as laid down in the English legal system. These
decisions are unequivocally well decided. As novel as the test appears, it leaves some
questions unattended. By what standard is natural justice measured? What does equity
portend? What amounts to good conscience? In whose mind would good conscience be
established? To answer these, the following reasoning from the understanding of African
legal system are pivotal:
1. The concept “nature” is applicable to humanity irrespective of origin; hence the term
“natural justice” is generic.
2. Equity simply, is regarded as equality, being subjected to same conditions, using the
same criteria including the dictate of such standard.
3. Good conscience is a safe and unambiguous resolution or inference that is devoid of
bias, sentiment and favouritism regardless of colour, race, origin and language.
4. Good conscience is established in the mind of the ordinary man in right his senses
that is capable of making decision understand and respect others’ decisions.
From the foregoing, it would be inferred that what is repugnant should be determined
the test of a reasonable man36
, irrespective of race or colour, and not by a lone validity
test of the English legal system. It will not be out of place to have natural justice, using
African jurisprudential standardised tests as yardsticks. The idea that some African customs
alone should pass validity test is condescending. Hence, the test of African customs, in the bid
to establish natural justice and good conscience using English standardised tests, having
employed tests that are strange and foreign to African context. In effect, what is
repugnant should also be determined by African standardised tests, even in the event of
English law. For instance, gayness and lesbianism are homosexual relationships, against the
natural biological order, have developed to the point of marriage. What is considered as
misnomer and taboo in African context has received both statutory and judicial approval in
the English legal system, thereby making it legal. Similar to this is abortion which naturally
amounts to a termination of live process. This, in turn, aids promiscuity and infidelity. This is
guarded against in African context to protect the societal etiquette in regard to chastity. This
has also been legalised under the English legal system. Polyandry is another phenomenon that
is rampart in some parts of the western world, let alone pornography, which is sometimes
disgusting and usually triggers the rate of unwanted pregnancy and the criminal offence of
rape. The concept of colonialism, imperialism and the contemporary neo-colonialism, being
yardsticks of exploitation and modern slavery, used by the western world against their former
colonies, especially the African countries, are all inimical to natural justice, equity and good
conscience. If African jurisprudence standardised tests were to be applied to these and other
related phenomena or disasters in English laws, they would be unequivocally adjudged to be
repugnant to natural justice, equity and good conscience, thereby failing the test.
35
(1961)N.L.N.L.R 81.
36
This is determined in Africa by considering the case, making references to age, sex, and
obligation of the ‘man’ contemplated, in line with the circumstance.

Therefore, the question as to the standard of repugnancy should be a subject of definition
to, and adjudged, the various laws and customs in different legal systems so that the standard
as it applies under the English law should not apply to the Chinese legal system and the
former not apply to the Nigerian legal system.
Recommendations
By way of proffering solution to the aforementioned myths, documentation of African
philosophy, African customary laws and African jurisprudence is a plausible venture in which
African writers must take cognisance of and incorporate into their writings to deep it
into the sea. While I will not recommend that the African principles of law be codified and
given effect of law, due to the influence, if not monopolistic absorption by the English law,
efforts should be made to document them for easy access, reference, and to serve as a guide in
the application of the law. Also, the perspectives forming the bases of beliefs of earlier
western writers are faulty and need to be re-examined. Efforts should be made by the western
world writers to accommodate, accept and integrate the African practices as regards the
principle and nature of Law and Jurisprudence, into their works.
Meanwhile, the idea that some African laws are repugnant to natural justice and good
conscience, using English standard may in itself, be repugnant, having employed tests that are
strange and foreign to African context. In effect, what is repugnant should be determined by
African standardised tests. Therefore, Africans must also conspicuously and prudently apply
African principles of law and jurisprudence in their spheres of lives, governmental or
nongovernmental, especially, when English laws seem to have more damaging effects,
inapplicable or too rigid. For instance, the English doctrine as exemplified in winner takes all,
and loser loses all, sometimes worsen cases rather than resolve them. Hence, it should not be
applied in every stratum, for this may sometimes be too rigid. African jurisprudence
recognises predicaments with the technicalities of the law in the English court which is
illustrated in Akutikootubo sore (There can never be brotherliness again after litigation).
To forestall this, it thereby offers mechanisms or fora for an amicable settlement of disputes,
for the handshake of peace, brotherliness, continuity and the peaceful co-existence in the
society. This is reflected in African dispute settlement (court) processes.
Interestingly, the concept of peaceful co-existent, as portrayed in African traditional
courts, are being adopted even in the English legal system. These are now recognised and
integrated into their system as a way of mediation, conciliation, arbitration and negotiation.
Omoniyi Adewoye states that the need to maintain social equilibrium as the primary
objective of judicial administration has attracted the attention of American jurists and legal
scholars. The repugnancy nature of the repugnancy test is that which at the moment looks
jurisprudential and philosophical with different positions and opinions. But with gradual
efforts, we may get rid of the erroneous and controversial test.

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