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Judicial Precedent in Africa Revisited

Published online by Cambridge University Press:  28 July 2009

A. N. Allott
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Extract

One of the central facts, if not the most important of all, about the general legal systems of African countries is that they are derived wholly or partly from the legal systems of foreign countries, usually those of the former colonial power, though this is by no means the only source which has been drawn upon. Thus in Commonwealth Africa there has been extensive borrowing not only from the law of England, but from British India, from the provinces of South Africa, and to a less extent from other common-law jurisdictions, such as Queensland, New Zealand and Canada. This wholesale adoption of extraneous laws, sometimes unadapted, sometimes modified, immediately raises the fundamental question of the authority, if any, of judicial decisions in the donor country for the purpose of elucidating or determining the applicable law in the receiving country. There has been considerable discussion on this point, largely initiated by the writings of Elias and myself;1 and in the recent past the theme has been taken up by a number of other writers, especially those concerned with Nigerian and Ghanaian law.2

Type
Research Article
Information
Journal of African Law , Volume 12 , Issue 1 , Spring 1968 , pp. 3 - 31
Copyright
Copyright © School of Oriental and African Studies 1968

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References

page 3 note 1 T. O. Elias, “Colonial courts and the doctrine of judicial precedent” (1955), 18 M.L.R. 356; A. N. Allott, “The authorty of English decisions in colonial courts”, Chap. 2 of Essays in African Law, 1960; A. J. Kerr, “The reception and codification of systems of law in Southern Africa”, [1958] J.A.L. 82; etc.

page 3 note 2 See for instance: Park, A. E. W., Sources of Nigerian law, 1963Google Scholar; Nwabueze, B. O., The machinery of justice in Nigeria, 1963Google Scholar; Bennion, F. A. R., Constitutional law of Ghana, 1962Google Scholar; Daniels, W. C. E., The common law in West Africa, 1964, pp. 173–195Google Scholar; Roberts-Wray, Sir K., Commonwealth and colonial law, 1966, pp. 563–575Google Scholar; Ollennu, N. A., “Judicial precedent in Ghana” (1967), 4 U.G.L.J. 139Google Scholar; Asante, S. K. B., “Stare decisis in the Supreme Court of Ghana” (1964), 1 U.G.L.J. 52.Google Scholar

page 8 note 1 At (1952), 1 I.C.L.Q. 392.

page 8 note 2 At p. 573.

page 9 note 1 A very important qualification: many Privy Council decisions are unreported; some are reproduced in the law reports of the countries from which they originate, but in the past such foreign law reports have neither been generally available nor consulted in other African countries.

page 9 note 2 N. A. Ollennu, “Judicial precedent in Ghana” (1967), 4 U.G.L.J. 139.

page 9 note 3 “Stare decisis in the Supreme Court of Ghana” (1964), 1 U.G.L.J. 52.

page 10 note 1 Rhodesian Commercial Law, 1961.

page 11 note 1 This produces a difference in the authority of extraneous decisions on Roman-Dutch and English common law respectively, since decisions of the House of Lords are apparently treated as binding by Southern Rhodesian courts in matters which are governed by English law: see R. v. L., 1951 (4) S.A. 614 (A.D.);Robins v. The National Trust Co. Ltd., [1927] A.C.515.

page 11 note 2 For the resolution of this apparent contradiction, see A. W. B. Simpson, “The ratio decidendi of a case and the doctrine of binding precedent”, in Oxford essays in jurisprudence, ed. A. G. Guest, 1961.

page 12 note 1 Cf. Park, A. E. W., The Sources of Nigerian Law, 1963Google Scholar; Nwabueze, B. O., The Machinery of Justice in Nigeria, 1963.Google Scholar

page 12 note 2 Nigerian Law: some recent developments, 1965.

page 13 note 1 See the discussion in “The Common Law of Nigeria”, at pp. 37–42.

page 13 note 2 For other authority see the observations of O'Connor, P., in Barclays Bank D.C.O. v. Gulu Millers Ltd., [1959] E.A. 540. Christie; op. cit., p. 35.

page 14 note 1 e.g. Christie, op. cit., pp. 35–37; Robinsv. The National Trust Co. Ltd., supra; Trimble v. Hill(1879), 5 App. Cas., 342, extends authority to the judgments of the English Court of Appeal as well.

page 15 note 1 [1964] E.A. 442 (C.A.).

page 16 note 1 See the helpful observations of Spencer Wilkinson, C.J., in Monteiro v. Acme Construction Co., 1960 R. & N. 257 (Ny.), especially at p. 256, where he held that the rule about statutes in pari materia applied only to the statutes of one legislature and not to statutes made by different legislatures.

page 23 note 1 Excerpted from note on this case at [1967] J.A.L. 141 by L. K. Young.

page 24 note 1 See also Patel v. Patel [1958] E. A. 642 in similar terms.

page 25 note 1 See the full discussion on this point by Morris and Read in their Uganda: the development of its laws and constitution, 1966, at pp. 310 et seq.

page 26 note 1 In his The common law in West Africa, 1964, at pp. 173 et seq.

page 26 note 2 Op. cit.

page 26 note 3 Op. cit.

page 27 note 1 London Street Tramways Co. Ltd. v. L.C.C., [1898] A.C. 375 for the House of Lords; Young v. Bristol Aeroplane Co., [1944] 1 K.B. 719 for the Court of Appeal.

page 28 note 1 Op. cit.

page 28 note 2 Op. cit.

page 28 note 3 Op. cit.

page 28 note 4 W. B. Harvey, Law and social change in Ghana, 1966, pp. 256 et Seq.

page 28 note 5 F. A. R. Bennion, Constitutional law of Ghana, 1962, pp. 173 et seq.

page 28 note 6 L. Rubin and P. Murray, The constitution and government of Ghana, 1961, pp. 178–9.

page 30 note 1 See also Amoabimaa v. Badu (1956), 1 W.A.L.R. 227 for further application of this principle in the Ghana courts.

page 30 note 2 See, e.g., Kajubi v. Kabali (1944), 11 E.A.C.A. 34. Morris and Read, op. cit. at p. 256, make perhaps a too pointed contrast between Uganda and West African practice in this regard.