Seite - 44 - in Austrian Law Journal, Band 1/2017

ALJ 1/2017 Lambert H.B. Asemota 44 gion at around 11th century, via traders from North Africa.18 While Islam remained the religion of court and commerce for centuries, the ordinary citizens, particularly those in the rural areas, continued to practise polytheistic or animistic faiths with elements of Islam blended in.19 This was one of the reasons Sharia was originally categorised as native custom (and later, customary law) when the British merged the Northern Region with the Southern Region. However, when the Penal Code Law20 was promulgated in 1959, it abrogated the criminal jurisdiction of the Native Courts which previously had wide margin of power to adjudicate (using Sharia) on both penal and civil (personal) matters. It remained so until Nigeria finally returned to democracy in 1999. The hitherto personal scope of application of Sharia law was again extended to criminal law on in October 1999, following the election of Ahmed Sani as Governor of Zamfara state, who, in his electioneering campaign promised to re-establish Sharia law as a matter of right.21 II. Proof (and application) of customary law Regarding the legal endorsement of customary law application in Nigeria, the colony of Lagos was the starting point. The Supreme Court Ordinance No. 4 of 1876 seems to be the first signifi- cant regulatory statute that made a far-reaching attempt to proffer guidelines as to when and how a given custom was to be considered for application. This is what is now referred to as the “Repugnancy Test”. It stipulates: ”Nothing in this Ordinance shall deprive (...) any person of the bene- fit of any law or custom existing in the said Colony and Territories subject to its jurisdiction, such law or custom not being repugnant to natural justice, equity and good conscience, nor incompatible either directly or by necessary implication with any enactment of the colonial Legislature existing at the com- mencement of the Ordinance, or which may afterwards come into operation.”22 And therefore, when Nigeria was created in 1914 after the “amalgamation” of the northern and southern protec- torates, the British government (through its principal representative, Fredrick Lugard, who was appointed as the first Governor-General), made it part of its foreign policy initiative to retain the customs prevalent in any such area. Hence, Lugard relates in his book the importance of ensur- ing that the traditions of native peoples were given serious consideration in governance. He be- lieved that such strategy would help in no small measure in promoting the indigenous peoples’ welfare and happiness.23 Evidence Act LFN 199024 also provides that any such custom relied upon must meet the Repugnan- cy Test as initiated by the Supreme Court Ordinance. This is to ensure that the particular custom is suitable for application, and not barbarous, unfair or overtly discriminatory. It is however im- portant to mention here that the legal pendulums in this regard have, in several cases, swung either way,25 so that it now appears to be only a subject for academic debate. 18 Id. 19 Id. 20 Penal Code Law (1959) 18 (Northern Region) (Nigeria). 21 See GUNNAR J. WEIMANN, ISLAMIC CRIMINAL LAW IN NORTHERN NIGERIA: POLITICS, RELIGION, JUDICIAL PRACTICE, 129 (2010). 22 The Supreme Court Ordinance No. 4 of 1876. 23 See FREDERICK LUGARD, THE DUAL MANDATE IN BRITISH TROPICAL AFRICA (1926), available at http://www.fafich.ufmg.br/ luarnaut/Lugard-dual%20mandate.pdf (last visited Mar. 27, 2017). 24 Evidence Act Law of Federation of Nigeria (1990), § 14 which has since been replaced by Evidence Act (2011), §§ 16–19 & 73. 25 See for example: Nigerian cases such as Mojekwu v. Mojekwu [1997] 7 N.W.L.R 283; Ukeje v. Ukeje et al. [2001] 27 WRN 142; Mojekwu v. Iwuchukwu (2004) 4. S.C. (Pt.II). 1. (By substitution for Mojekwu – deceased).