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T O Elias-The Judicial Process.Pdf THE JUDICIALPROCESS IA COMMONWEALTH AFRICA T 0 ELIAS THE JUDICIAL PROCESS IN COMMONWEALTH AFRICA T O ELIAS formerly Chief Justice of Nigeria INSTllvl* O f d i v i i o p w n t *TUP*M tlftftAAT UNIVERSITY OF GHANA LEGON FEP INTERNATIONAL LTD VICE-CHANCELLOR S FOREWORD AGGREY-FRASER-GUGGISBERG MEMORIAL LECTURES 1975 Dr Taslim Olawale Elias, who delivered the 1975 series of lectures, was born on 11 November 1914 and was educated at Lagos CMS Grammar School and Igbobi College before he proceeded to the University of London for a very brilliant academic career. One academic honour fter another came easily to him and I may only single out the follov, mg: University of London Post-Graduate Scholarship, 1946-49; Yarborough-Anderson Scholarship to the Inner Temple, 1948-49; the Ph.D. (London), 1949; Simon Research Fellowship at the Institute of Commonwealth Studies and Queen Elizabeth House, Oxford, 1954-60; Research Fellowship at Nuffield College, Oxford, 1956; and the LL.D. (London), 1962. Dr Elias' fame quickly spread far and wide. No wonder then that he became Constitutional Adviser to the British West Indies, 1959; Somaliland, 1960; and Malawi, 1960. He was Chairman of the United Nations Constitutional and Legal Experts to draft a Constitution for the Congo (Leopoldville), 1961 and 1962. He has been a member of the International Law Commission of the United Nations since 1961 and was Chairman of that body in 1970; Member of the Inter­ national Law Association, London, 1965, and Associate of the Institute de Droit International. He holds six honorary degrees and has been Visiting Professor of Political Science at the University of Delhi. 1956; Governor of the School of Oriental and African Studies, London University, 1957-60; Attorney-General and Minister of Justice of the Federal Nigeria Government, 1960-66 (the first Nigerian to h old this post); and again Attorney-General and Commissioner for Justice after October 1966; and from February 1972, the Chief Justice of the Federal Republic of Nigeria. He has argued cases before the Privy Cou il and the International Court of Justice. He has also vvritten extensively. Among his books are the following: 1. Nigerian Land Law and Custom 1951 2. Groundwork of Nigerian Law 1 /54 3. Nature of African Customary Law 1956 4. Government and Politics in Africa 1961 5. Nigeria: Development of its Laws and Constitution 1967 6. Africa and the Development of International Law 1972 7. The Modern Law of Treaties 1974 Dr Elias is indeed one of the most ‘learned’ sons of Africa practising the ‘learned’ profession— and he has brought distinction to his profession at home as well as on the international s^ we. It is such lustre that Dr T. O. Elias brought to the thirteenth in our series of lectures designed to commemorate the three founders of Achimota: Dr E. Kwegyir Aggrey, Rev. Alex Fraser and Governor Gordon Guggisberg. These lectures were established in 1957 in the year of the independence of Ghana by the University of Ghana with funds provided by the Ghana Government. Dr T. O. Elias chose for his theme ‘The Judicial Process in Common­ wealth Africa’ with five subtitles: (i) English Law in African Courts; (ii) Judges and Customary Law; (iii) Conflict of Laws; (iv) Judicial Interpretation of the Constitution; and (v) Judicial Precedent and Legal Development in Africa. These stimulating lectures, which have now been published, would be most educative, particularly for those who were not able to listen to Dr Elias and more so for those who listened to him on all five occasions. D . A . B eko e PRO- VIC E -C H A N C E LLO R M A R C H 1975 CONTENTS Vice-Chancellor's Forew ord Lecture One: English Law in African Courts Lecture Two: Judges and Customary Law Lecture Three: The Conflict of Laws Lecture Four: Judicial Interpretation of the Con stitution Lecture Five: Judicial Precedent and Legal Develop ment in Africa (c) 1977 University o f Ghana. Printed and bound by PEP International Ltd., Jurong, Singapore. LECTURE ONE ENGLISH LAW IN AFRICAN COURTS I The Reception of English Law The most fundamental question in any consideration of Common­ wealth law in African territories is perhaps one of determining how English law was introduced into the several countries, and how much of it is applicable therein. The extent of the application of English law may be due to the nature of the administrative policy underlying its introduction, or it may be due to the subject matter of the litigation, or even to the manner of its interpretation and application in individual cases or a group of cases. One common feature of the reception of English law in the Common­ wealth African territories is an invariable formula which runs some­ what along these lines: The common law, the doctrines of equity and statutes of general application in England at a named date shall be applicable in the particular territory so far as local circumstances permit and it is not modified by express local legislation. Now, in the case of Ghana,1 that is. the former Gold Coast Colony, the operative date is July 24, 1874; in the Kenya Colony it is 1897; in Nigeria (with the exception of Western and Mid-Western Nigeria),2 it is January 1, 1900; and in the case of Uganda, it is January 1, 1902. 1 In the former Gold Coast Colony, English law was officially introduced on this date, even though it had been at work in one form or another in some parts of the settlement in the Bond of 1844. 2 In the old Lagos settlement, English law was first officially introduced on March 4, 1863. not long after the Cession of 1861. The Nigerian formula runs as follows: S 45 (1) Subject to the provisions of this section and except in so far as other pro­ vision is made by any Federal law, the common law of England and the doctrines of equity, together with the statutes of general application that were in force in England on the 1st day o f January, 1900, shall be in force in Lagos and, in so far as they relate to any matter within the exclusive legislative competence of the Federal legislature, shall be in force elsewhere in the Federation. (2) Such Imperial laws shall be in force so far only as the limits of the local THE JUDICIAL PROCESS IN COMMONWEALTH AFRICA By the Kenya Judicature Act of 1967 which substantially reproduced the provisions contained in the East Africa Protectorate Order-in- Council of 1902 with the 1911 Amendment, the courts of Kenya are empowered to administer, subject to any written law. “the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August 1897... Provided that the said common law, doctrines of equity and statutes of general application shall apply so far only as the circumstances of Kenya and its inhabitants permit and subject to such qualifications as those circumstances render necessary”. By virtue of section 74 of the Courts Act. 1965, and subject to the provisions of the Consti­ tution or any other enactment, the common law. doctrines of equity and statutes of general application in England on the first day of January 1880. are in force in Sierra Leone. Similarly, section 2(b) of the Judicature Act of 1962 of Uganda stated that, in so far as the written law did not apply, the Courts were to exercise jurisdiction “in conformity with the substance of the common law. doctrines of equity and the statutes of general application in force in England on the 11th of August. 1902” . Although these provisions have not been specifically spelt out in section 3(2)(a) of the Judicature Act of 1967. it must be presumed that the statutes of general application in England remain in force in Uganda. As far as Ghana is concerned, the basic provision is to be found in the Ghana Courts Ordinance, Cap 4 (now repealed), section 83 which provided as follows: Subject to the terms of this or any other Ordinance, the common law, the doctrines of equity and the statutes of general application which were in force in England on the 24th day of July, 1874, shall be in force within the jurisdiction of the courts. This position has been retained under the Courts Act. 1971. It will be noticed that all these omnibus provisions for the reception of English law in each territory pose a number of difficult problems. As regards common law and doctrines of equity, how arc we to apply 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. Law (Mis­ cellaneous Provisions) Act, 1964, (Cap 89) of Laws of the Federation of Nigeria and Lagos, 1958 Edition of the Laws, Vol III, Cap 89. All the States in the Federation (except Western & Mid-Western States) have adopted January 1, 1900, as the cut-off date. 2 ENGLISH LAW IN AFRICAN COURTS the limiting date? Is it to apply only to the statutes of general application in England at the specified date, or to the common law and doctrines of equity as well at the specified date? Put in another way, have the common law and doctrines of equity applicable in a territory been affected by the decisions of the English superior courts since the specified date which have modified these branches of the law in England? Various answers have been given to these questions by a number of academic lawyers.3 No definite decision has been reached.
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