No CrossRef data available.
Article contents
Jurisdiction of The Buganda Courts and The Scope of Customary Law in Uganda
Published online by Cambridge University Press: 28 July 2009
Extract
The appeal, The Kabaka's Government v. N. S. W. Kitonto, heard recently by the Court of Appeal for Eastern Africa, is of considerable interest not merely in respect of the basic issue in dispute as to whether the High Court or the Principal Court of Buganda had exclusive jurisdiction to try the original case but also in respect of the far-reaching observations made in the appeal judgment as to the place of customary law in relation to the common law. In this case the respondent had sued the Kabaka's Government in the High Court of Buganda, alleging that a Mr. Sebowa “acting in his capacity and the scope of his authority as a servant of the Government” had negligently and unskilfully removed from the respondent's mouth two sound wisdom teeth instead of two decayed teeth. The Kabaka's Government pleaded that the transfer of the case to the Principal Court of Buganda was obligatory under section 7 of the Buganda Courts Ordinance, since the Principal Court had jurisdiction to try the case. Slade, J., refused to order transfer and the case was tried in the High Court and decided in favour of the respondent. On appeal, it was held that the decision to refuse transfer was erroneous, the judgment being, accordingly, set aside on the ground of lack of jurisdiction.
- Type
- Research Article
- Information
- Copyright
- Copyright © School of Oriental and African Studies 1965
References
1 Civil Appeal No. 14 of 1965 (as yet unreported).
2 [1963] E.A. 684.
3 Act 38 of 1964.
page 155 note 1 Since the establishment in 1962, under the terms of the Constitution, of a High Court of Buganda, the term “Buganda court” has become somewhat misleading. The term is applied to the Principal Court and to the lower courts subordinate to it, all of which operate within the framework of the Buganda Courts Ordinance and administer basically the Buganda laws enacted by the Buganda legislature and the unwritten customary law. The High Court of Buganda, which has the same jurisdiction within Buganda as has the High Court of Uganda, is not, in this sense, a “Buganda court” and this term, as used in this article, does not include the High Court of Buganda. References to “the High Court” in the Buganda Courts Ordinance have been held in the appeal judgment under consideration to include the High Court of Buganda.
page 155 note 2 As an Attorney-General of Uganda pointed out on another occasion, these Proclamations were, in effect, subsidiary agreements.
page 155 note 3 1 U.L.R. 22.
page 155 note 4 Section 4 of the Foreign Jurisdiction Act provides for reference to a Secretary of State of questions of jurisdiction.
page 156 note 1 [1926] A.C. 518.
page 156 note 2 There have since been a number of important constitutional cases in Uganda in which it has been held that the Agreements were not part of the municipal law.
page 156 note 3 “Natives” were defined in the Ordinance as being members of an indigenous tribe of Uganda and of certain of the neighbouring territories. The Ordinance did not repeat the earlier restriction on Buganda courts, leaving cases involving government servants and offences committed in townships.
page 156 note 4 The entrenched position of the Buganda Courts Ordinance is well illustrated by the fact that, although in the forthcoming Revision of the Laws of Uganda all ordinances will be redesignated as acts, an exception is to be made in the case of the Buganda Courts Ordinance, since even to change its title, without the consent of the legislative assembly of Buganda, would be to infringe the Constitution. This enactment will, therefore, appear as the only “ordinance” in the statute book. A result of this entrenched position is of course, that the new Magistrates’ Courts Act, which of necessity entails the supersession of the Buganda Courts Ordinance, cannot be applied to Buganda without the consent of its legislative assembly.
page 156 note 5 Section 10.
page 156 note 6 Section 9.
page 157 note 1 R. v. Muigira s/o Kataraina (1942), 6 U.L.R. 118.
page 157 note 2 H. I. Mutyaba v. A. A. Kalanzi, [1960] E.A. 367.
page 157 note 3 E. K. M. Kibalama and Ali Sentamu v. Joseph M. Basazemagya and ors. (1944) 6 U.L.R. 137. See also Nasanairi Nserikomawa and anor. v. Taibu Lwanga and anor., [1961] E.A. 119.
page 157 note 4 Fabiano Bukenya v. D. Mutebi, [1959] E.A. 366.
page 157 note 5 [1960] E.A. 367.
page 158 note 1 E.g. Mutyaba v. Kalanzi and Flora d/o Agoya v. D. Kasigwa, [1962] E.A. 304.
page 158 note 2 [1961] E.A. 716.
page 158 note 3 [1963] E.A. 631.
page 160 note 1 Reuben Musanje v. Tomasi Yamulemye, referred to p. 158, ante.
page 161 note 1 Slade, J., was, however, of the opinion that the repeal of the Order in Council had radically altered the position in this respect.
page 161 note 2 In cases where the common law and the customary law are identical, then it would not seem to matter whether the term “common law” or “customary law” is given to the actual law applied in a particular case, except, perhaps, in so far as the authority of judicial precedents is concerned. It should be borne in mind that under the Magistrates’ Courts Act such courts will be administering both the common law and customary law; if the latter law is to prevail in the case of choice of law, then the former will be confined to a comparatively narrow field.
page 161 note 3 E.g., Maleksultan v. Sherali Jeraj (1954) 22 E.A.C.A. 142, in which the provision was invoked to justify the application of the Islamic law of marriage.