The Land Use Act, 1978, is a product of the inherent contradictions of the colonial and neo-colonial dependent, pseudo-capitalist economic structures established in Nigeria since colonial times. By the 1970s these contradictions became so seŕious that they threatened to become a clog on the growth of the capitalist economy. If such contradictions were allowed to reach a nodal point, conditions for the self-negation of the existing socio-economic and legal order would have ensued. The legislature, it would seem, narrowly identified the problem with private ownership of lands from its own class perspective, that is without a scientific conception of the problems in terms of ownership in the theory of social relations. A scientific conception of the problems would have revealed the essence of the difficulties as relating, not merely to the procedural aspects of private ownership of the lands, such as certainty of title, registration of title, etc., but concerning the institution of private ownership as an economic and legal category around which the exploitation of man by man is organised in class-divided societies.

Such a scientific perception of the problems would have demanded a lasting solution that not only abolished private ownership rights in land but also abolished private ownership of other means of production. The socialisation of all means of production would have amounted to a holistic approach to the solution of the problems in the interest of the nation as a whole.

Many Nigerian decisions in tax cases have firmly established the possibility of raising the defence of lack of jurisdiction in the assessment in an action for recovery of tax. This development has resulted from decisions of the courts and has led to a significant shift from the practice in the U.K. There— aside from the possibility of applying in rather exceptional cases for judicial review—the consideration of any issues, whether of fact or of law, as to the merits of an assessment is confined to appeals before the Commissioners with further appeal to the High Court on points of law. This apparently technical difference has had great practical importance. Recourse to the courts for the purpose of tax recovery has become more difficult for the Revenue and this has encouraged the development of extra-judicial methods of tax collection.

A study of those Nigerian decisions that have established, extended and applied this doctrine, and of its consequences, should be of interest in other anglophone African countries. The income tax statutes of many such countries are basically similar due to their common descent from a “Model Ordinance” prepared in the U.K. in 1922. Decisions of the Nigerian Courts on the construction of provisions of the Nigerian tax statutes are of persuasive authority in other Commonwealth countries with similar provisions in their own tax enactments.

This paper first provides a broad outline of the Nigerian legislation on tax assessments, appeals and collection in order to facilitate the understanding of the points discussed later.

The case of Gwao bin Kilimo v. Kisunda bin Ifuti decided by the colonial courts of the then Tanganyika has always held a certain fascination for those interested in the process of law under colonial rule. This is for a variety of reasons. The case seems to put into sharp focus the conflict between the imposed common law system and the indigenous customary law. This in turn stimulates questions as to the social values that lay, and probably still lie, behind the two systems and the extent to which those values reflect actual differences between the societies in which they developed. Since the conflict arose in a colonial context, the case also raises the question of the rôle of law in such a society and therefore, to some extent, the rôle of law in relation to ideology and political economy in this and in other contexts also. What is less well known is that the case was the subject of comment by colonial administrative officers at the time, comments which point up many of the issues involved and provide some insight into the different perceptions of African society on the part of administrative officers on the one hand and the judiciary on the other.

The period covering the first seven years of Malawi's independence (1964–1971) stands out as one of the most controversial in the country's postcolonial legislative history. It was during this period, for example, that the local or “Native” Courts of the colonial era were transformed into the now controversial Traditional Courts and given an existence separate from and independent of the High Court, as well as extensive criminal jurisdiction encompassing offences like murder and manslaughter and, subsequently, treason and sedition which were hitherto the preserve of the High Court. At the same time, the participation of lawyers in traditional court processes and the right of legal representation were curtailed under the pretext of ensuring that the course of justice would not be subverted by the frequent invocation of “technicalities” which lawyers are wont to invoke because of the alien and esoteric nature of their training. This paper is not concerned with the “law” of the Traditional Courts in Malawi which, elsewhere, continues to excite appropriate scholarly interest, but with another equally controversial law of the same period whose formulation was buttressed by similar antipathy towards the legal profession. This law introduced a special and rigorous regime for the prosecution and punishment of thefts in the public service.

The functioning of society is considerably aided by legal rules and social norms. The extent, scope and complexity of such laws and norms are determined in the final analysis by the level of socio-economic activity, growth and development. Corresponding economic and social institutions of an administrative nature tend to evolve and become intertwined with such developments. In order to cope with increasing responsibilities, a government may establish statutory bodies to deal with certain aspects of governmental activity of a quasi-judicial nature.

In developing countries such as Ghana, therefore, one often finds in the Statute books enactments conferring certain powers on quasi-judicial bodies. In Ghana, powers are conferred on such bodies to carry out investigations and make findings of fact concerning such matters as chieftaincy disputes, the determination of boundaries between two communities, the settlement of trade disputes, etc. Perhaps, recognising the limitations of such bodies, the decisions based on the facts found by such bodies do not usually become binding on the persons or the institutions to be affected in die same way as die decisions of the regular courts do. To become binding, the law usually provides that two conditions are satisfied:

(i) The findings or decisions must be confirmed by the executive or the minister acting in that behalf; and

(ii) they must be published in an official gazette, bulletin or in any such official publication.

The problem of indeterminacy in law has been the subject of interesting debate for many years now. Pitched against each other in the controversy are Hart, Dworkin, Benditt, American Realist jurisprudence and recent exponents of Critical Legal Studies (C.L.S.). Interesting as the controversy is, it is not as ordinary as our most casual statements seem to suggest, especially if the implications and outcomes necessitated by the existence of legal indeterminacy are examined rather than the concentration on ideologies and perspectives. To consider these implications and outcomes in detail, it is important to develop a generalised overview within which more detailed inquiries may find their context. Thus, in this paper, I shall first, examine indeterminacy as a concept per se. I shall then examine a selection of general arguments for and against legal indeterminacy and elucidate what is critically involved in these claims and in their denials. I do hope, at least, to give an idea of the difficulties we meet when we try to get our ideas clear on it and to show how any solution of the problem (if it is soluble at all) is closely connected with other problems in language and politics.

The topic of this paper is indeterminacy in law.