British administration in overseas countries has conferred no greater benefit than English law and justice. That may be a trite observation, but I offer no apology. It has been said so often by so many people—as many laymen as lawyers and perhaps more Africans than Englishmen—that it must be assumed to be true. But what, in this context, are English law and justice, or similar expressions (it is put in many different ways) to be taken to comprehend ? I have heard one or two lawyers who have served overseas speak as if there were a rebuttable presumption that anything suitable for this country should be acceptable for a country in Africa. Even if that were true, and I am sure it is not, it would not that all English legal rules and institutions are appropriate for Africa, for they are not even suitable for England. It is only too true that the law is sometimes “an ass”. Not so often as some laymen like to claim, though laymen may be fair judges of what is good sense in law. I well remember how as a law student I became impatient with principles, especially in the law of torts and the rules of evidence, which to my mind left a large gap between law on the one hand and justice or common sense on the other. I am well aware that in my critical attitude I was at one with the majority, and all lawyers must welcome the labours of the Law Reform Committees, which have borne fruit in a steady stream of important Bills during the last thirty years.

The London Conference on the Future of Law in Africa, meeting at Westminster from 28th December, 1959 to 8th January, 1960, and attended by leading judicial and legal representatives from many English-speaking African countries, incidentally examined the problem of legal education in and for Africa (for which see the Conference Record, Chapter 13). The discussions were centred on the problems of East Africa, since it was here that the absence of provision for local training was making itself most felt. Because of the gravity and urgency of the problem, the Conference recommended that a committee should be set up without delay to go into the whole matter.

The economic aspects of the hire-purchase movement are well known and it is not intended to discuss them here. It will be sufficient to point out that hire-purchase finance enables people, in certain circumstances, to live by taking in, not each other's washing, but their own. This remarkable achievement was recently explained by The Times:

“The reliance on funds from the public to finance consumer hire-purchase spending is, in fact, a paradox in that the public is ultimately financing itself. As it is pointed out in the second edition of Hire Purchase in a Free Society, the man who subscribes to a life endowment policy yet chooses to buy a car on hire-purchase rather than liquidate it may in effect be financing himself.”

I do not wish to trouble you with the details of the system of courts in the Sudan, which is extremely complicated, but it is necessary to sketch the bare outlines. For some time it has been true to say that the Sudan has an “integrated” system in that the Local Courts form part of the judicial hierarchy and come under the supervision of the judiciary rather than the executive. But it would be misleading to call the system “unified”, as the judiciary is split into two quite separate hierarchies: the Sharia Division of which the Grand Kadi is the head, and the Civil Division over which I have the honour to preside. Within the Civil Division there are three main types of courts: “Civil Courts” as established under the Civil Justice Ordinance, Native Courts set up under the Native Courts Ordinance in the six Northern Provinces, and Chiefs Courts set up by the Chiefs’ Courts Ordinance in the three Southern Provinces.

The object of this paper is to show how far the Common Law has in the course of its adoption in Africa lost this distinctive feature, to indicate some of the reasons for this loss, and to describe the institution which has taken its place in criminal trials upon indictment.

Few lenders are as demanding as Shylock, but nearly all share his desire to obtain as good security as they can for their loans.

The personal remedy against the borrower is often regarded as inadequate, for “a man advancing money upon mortgage wants something better than this, he wants some jus in rem, some right in certain specific things as well as the mere jus in personam that the mortgagor's covenant will give him”.

The power of the High Court to apply customary law in appropriate cases is now to be found in s. 17 of the Western Region High Court Law, 1954, No. 3 of 1955, which in this respect merely repeats in substance the provisions of s. 17 of the old Supreme Court Ordinance (cap. 211). The power to enforce customary law in the Region is, as is usual in other places, made subject to such law not being repugnant to natural justice, equity and good conscience or incompatible with legislative provisions. Also customary law may be applicable between “Nigerians” and “non-Nigerians” where otherwise substantial injustice would be done to either party, and the operation of customary law could be excluded either by the nature of the transaction in question or by the agreement of the parties.

The choice of the subject of this paper has been made in order to provide, in line with the general theme of the Conference, an analysis and evaluation of the relationship between English law and customary law in the Western Region of Nigeria. An attempt will be made not only to give a general account of the past and the present position in this matter but also to indicate the directions in which, in various respects, developments appear likely to tend in the future.