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Published online by Cambridge University Press: 28 July 2009
The law of England has been introduced into colonial territories to a varying extent and by various means3; as a consequence, whether adopted en bloc or piecemeal or borrowed by way of Indian law, the English law forms the major part of the law applicable in each territory, and is often the residual law which is called on in default of an express rule. But this reception of the law of England immediately raises a problem of some magnitude; to what extent, if at all, are the decisions of courts in England to be followed by colonial courts? It is somewhat surprising that, at this late hour, the problem should not apparently have been considered by legal writers, except in a useful article by Dr. T. O. Elias4.
3 By legislation by the British Crown or by colonial legislation adopting English common law, equity, and statutes of general application as at a certain date; by colonial legislation subsequently adopting, or re-enacting in similar terms, the provisions of English Acts, etc.
4 Colonial Courts and the Doctrine of Judicial Precedent (1955), 18 M.L.R. 356, esp. at pp. 366 et seq.
page 24 note 1 Cf. Elias, op. cit., 356.
page 24 note 2 Nyali, Ltd. v. Attorney-General, [1956] 3 W.L.R. 341, H.L., is a good recent illustration of the application of the English law (in this case that relating to the prerogatives of the Crown) in the Kenya Protectorate. Leong v. Lim Beng Chye, [1955] 2 All E.R. 903; [1955] A.C. 648, P.C., a Malayan appeal, perhaps marks the extreme in the application of English law without qualification. See also Lyons Corporation v. East India Co. (1836), I Moo. P.C.G. 175; Yeap Cheah Neo v. Ong Cheng Neo (1875)L.R. 6 P.C. 381; Li Po Kam v. Li Ling Shi (1908), 3 Hong Kong L.R. 170.
The necessity for fhe adaptation of the English law to render it suitable to local African circumstances was strongly affirmed in the recent Northern Rhodesia case of Reg. v. Jovan Phiri (1955), 5 N.R.L.R. Part I, 324, by EVANS, J., at p. 329. The case concerned a charge of defilement; Wallace-Johnson v. R. 74:73, [1940] I All E.R. 241; [1940] A.C. 231, P.C, was followed.
page 25 note 1 Cap. 4, 1951 Revision of the Laws of the Gold Coast.
page 25 note 2 “Court” here means the superior and magistrates’ courts, but excludes the native courts.
page 25 note 3 See below at pp. 26 et seq.
page 26 note 1 (1879), 5 App. Cas. 342, P.C. (New South Wales).
page 26 note 2 [1927] A.C. 515, P.C.
page 26 note 3 At p. 519.
page 27 note 1 Dr. Elias, op. cit., 369, says: “Post-1900 [i.e., after the date of reception for Nigeria] English decisions will still apply—(i) as long as they do not involve a change of any particular common law doctrine or principle…”It is uncertain whether by “apply” he means “have binding force” or “have persuasives force”—presumably the former. The sort of change in the common law here envisaged appears to be that flowing from a later English statute, and not merely that resulting from later re-interpretation of principles in the courts.
page 27 note 2 [1927] A.C. 515, 519, P.C.; see above at p. 26.
page 27 note 3 But the distinction between codes and consolidating statutes (which do not operate to prevent reference to earlier decisions), is by no means clear in practice.
page 27 note 4 In Kenya, Uganda, Tanganyika, Nyasaland and Northern Rhodesia, the local Penal Codes replaced the previously-applied Indian Penal Code. The Nigerian and Gold Coast Criminal Codes are eclectic compilations from several sources.
page 28 note 1 [1940] I All E.R. 241; [1940] A.C. 231, P.C.
page 28 note 2 Following Stephens’ omission (presumably by an oversight).
page 28 note 3 At pp. 244 in each report.
page 28 note 4 (1929), F. Ct. ‘26-‘29, 513; dictum of MICHELIN, J., at p. 519; for which see below at p. 16.
page 28 note 5 [1940] I All E.R. 241, 244; [1940] A.C. 231, 244, P.C.
page 28 note 6 (1942). 9 E.A.C.A. 65.
page 28 note 7 Cap. 24 of the Laws of Uganda, 1951 Revision.
page 29 note 1 At p. 68.
page 29 note 2 Cap. 22.
page 29 note 3 Cap. 24 of the Laws of Kenya, 1948 Revision, now section 5.
page 29 note 4 (1934), I E.A.C.A. 188.
page 29 note 5 Now section 202. The section provides:
“Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances—
…
(c) an intent to commit a felony.”
page 29 note 6 At p. 190.
page 30 note 1 The words in brackets are inserted solely by reason of the special provisions of the East African Codes relating to interpretation of their provisions. And see Laila Jhina Mawji v. The Queen: Unreported, Privy Council Appeal No. 9 of 1956.
page 30 note 2 In Ogbuagu v. Police (1953), 20 N.L.R. 139, the charge was one of seditious libel contrary to section 51 (1) (c) of the Nigerian Criminal Code. BAIRAMIAN, J., held that the Nigerian Code is “meant to be complete and exhaustive”; he approved and followed Wallace-Johnson’s case, holding that a defence available in England which has not been expressly incorporated in the Nigerian Code is not available in Nigeria.
page 30 note 3 Cf. the dictum of WHITLEY, C.J., in the Uganda case of R. v. Lotlimoi (1941), 6 Ug. L.R. 99, at p. 100: “The Privy Council have laid it down over and over again that where a Colony has its own Code it is that Code which must prevail, even if its application results in a conflict with English decisions.”
page 30 note 4 See above, at p. I.
page 31 note 1 E.g., in Sierra Leone, by the Imperial Statutes (Criminal Law) Adoption Ordinance, cap. 107 (1946 Revision), the English Forgery Act, 1913, Perjury Act, 1911, and Larceny Act, 1916, were adopted as part of the law of Sierra Leone. And in Tanganyika, by the Land (Law of Property and Conveyancing) Ordinance, cap. 114, the whole of the English law of property as at 1st January, 1922, was adopted as part of the Tanganyika law.
page 31 note 2 See above at pp. 4 and 5.
page 31 note 3 E.g., Tanganyika, by cap. 2, has adopted the Indian Contract Act, Succession Act, Limitation Act, and Hindu Wills Act.
page 31 note 4 (1930), 4 Z.L.R. III.
page 31 note 5 See p. 114.
page 32 note 1 (1908), 3 Hong Kong L.R. 170.
page 32 note 2 See Maxwell, The Interpretation of Statutes, 10th edn., 33 et seq.
page 32 note 3 (1879), 5 App. Cas. 342, P.C. See also Catterall v. Sweetman (1845), I Rob. Ecc. 304, dictum of Dr. Lushington at p. 318.
page 32 note 4 At p. 344.
page 33 note 1 (1879), 5 App. Cas. 342.
page 33 note 2 [1898] 1 Ch. 675.
page 33 note 3 At p. 679.
page 33 note 4 [1950] A.C. 481, P.C.
page 34 note 1 [1933] A.C. 378.
page 34 note 2 (1923), L.R. 50 I.A. 227, 238.
page 34 note 3 (1908), 3 Hong Kong L.R. 170; see above at p. 11.
page 34 note 4 [1950] A.C. 481.
page 34 note 5 (1870), L.R. 5 Ch. App. 703 at p. 706, per Sir W. James, L.J.
page 35 note 1 ]1950] A.C. 481, at p. 491.
page 35 note 2 (1879), 5 App. Cas. 342.
page 35 note 3 [1955] 3 All E.R. 148; [I955] I W.L.R. 877, P.C.
page 35 note 4 At p. 153.
page 36 note 1 [1950] A.C. 481.
page 36 note 2 [1956] 3 All E.R. 266; [1956] A.C. 539.
page 36 note 3 [1956] 3 All E.R. 266, at p. 269; [1956] A.C. 539, at p. 547.
page 36 note 4 [1917] I Ch. 300.
page 36 note 5 [1938] 4 All E.R. 188; [1939] 1 K.B. 504.
page 36 note 6 [1956] 3 All E.R. 266, at p. 269; [1956] 3 A.C. 539, at p. 548.
page 36 note 7 Ibid., at pp. 271, 551, respectively.
page 37 note 1 (1879), 5 App. Cas. 342.
page 37 note 2 [1927]J A.C. 515, P.C.; see above at p. 4.
page 37 note 3 [1953] A.C. 407, P.C.
page 37 note 4 At p. 419.
page 37 note 5 Such, in fact, was the position in the recent case of In re Western Manufacturing (Reading) Ltd., [1955] 3 All E.R. 733; [1956] Ch. 436, coram WYNN-PARRY, J. The case involved the construction of the English Companies Act, 1948, section 209 (1). A Canadian decision on the Canadian Companies Act, 1934, section 124 (1) was cited by counsel to support his construction of the English statute. WYNN-PARRY, J., observed (at pp. 238 and 445, respectively):
“… Now, although that decision is not binding on me, even as a judge of first instance, it is one which should of course be examined and treated with the greatest respect. Further, I am bound to bear in mind, and I do bear in mind, what was said by the Privy Council in Trimble v. Hill.… Nevertheless, it is incumbent on me to construe section 209 of the Companies Act, 1948, for myself, bearing in mind that a provision equivalent to subsection (2) does not appear in the Canadian Companies Act, and in the light of the relevant English decisions.”
page 38 note 1 (1929), F. Ct. 1926–1929, 513, in the Full Court.
page 38 note 2 (1879). 5 APP. Cas. 342.
page 38 note 3 For which see above at p. 7.
page 38 note 4 At p. 519.
page 38 note 5 However, there was a previous decision of the Gold Coast Full Court which disposed of the instant case; the reference to English decisions was therefore not strictly necessary.
page 39 note 1 Cf., e.g., the marriage law of the Gold Coast. Section 17 of the Courts Ordinance, cap. 4, provides:
“The jurisdiction hereby conferred upon the Supreme Court in Probate, Divorce and Matrimonial Causes and proceedings may, subject to this Ordinance and to Rules of Court, be exercised by the Supreme Court in conformity with the law and practice for the time being in force in England…”
