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

This article is concerned with the application of the doctrines of equity by the courts in East Africa. “Equity” is used in two main ways in the laws of Commonwealth Africa: firstly, the courts were directed to apply the doctrines of equity;2 secondly, the courts were commonly directed to exclude indigenous laws if they were repugnant to “natural justice, equity and good conscience”.3 Sometimes it is used in a broad sense—“justice, equity and good conscience” is to be applied in resolving cases for which there is no other available rule. This article is concerned with the first meaning, equity in the technical, rather than the general, sense,4 with the circumstances in which the courts have applied the doctrines of equity (although it will be seen that the boundary between technical equity and equity in the sense of natural justice is notas rigid as is sometimes supposed). 5

Mosquitoes and a tropical climate have not been the only deterrents to alien settlement in certain parts of Anglophonic West Africa. In many countries, even before the independence movement, restrictions were placed upon non-African use and purchase of real estate. The general opposition to permanent colonization by large real estate holdings in the area supported this type of regulation.2 Now that insecticides and air conditioning units have reduced the effectiveness of the natural deterrents, only the laws remain.

The category of exemption clauses which has received the most detailed treatment in the Sudan Courts is the owners’ risk clauses in contracts for the carriage of goods by the Sudan Railways and Steamers. The owners’ risk clause is a clause incorporated by reference in all contracts for the carriage of goods at owners’ risk.

Nigeria like most other under-developed countries is presently faced with the enormous task of educating the main bulk of her citizens as one of the corner-stones for the economic development of the country. At present, the literate population, i.e. those who can read or write in any of the local languages or English, is well under ten per cent of the entire population of the country. Thus, we find that the vast majority of the people are illiterate not only in the local languages but also in the English language, which is the lingua franca of Nigeria. Illiteracy, therefore, is for Nigeria a fact of life with which the law makers have to reckon. English being the lingua franca has meant that the bulk of official and commercial transactions are done in that language, though only a minute percentage of the population is conversant with it.

The Wills and Inheritance Act,1 passed by the Malawi Parliament in November, 1967, is an attempt to provide a comprehensive scheme of interlocking succession provisions applicable to members of all racial groups. This is an ambitious objective and there is little need to stress here the numerous difficulties which stand in the way of its attainment. The greatest of these difficulties is to formulate a set of rules for those persons hitherto subject to diverse systems of customary law. Here the need is not only for a scheme which strikesan acceptable balance between the contemporary demands of the customary heirs and those of the immediate family, but also for one which is sufficiently flexible to accommodate the further changes which are bound to take place. Preferably the new rules will also be effective to guide future developments along lines which are deemed to be socially desirable. A further difficulty is to combine with this scheme the rules applicable to those persons who were not previously subject to customary law. Lastly, the system as a whole must be simple enough, in the case of small estates at least, to be administered in the Local Courts. It is against these requirements that the new Act will be measured in this note.